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A 

TREATISE 


PLEADINGS 

IN    SUITS    IN 

THE   COURT  OF  CHANCERY, 


BY  ENGLISH  BILL. 


BY    JOHN     MITFORD,     ESQ., 

(THE  LATE  LORD  REDESDALE.) 

"1 

♦ 

COMPRISING    THE    NOTES    OF 

GEORGE  JEREMY,  ESQ.,  OF  LINCOLN'S  INN,  BARRISTER  AT  LAW, 
CHARLES  EDWARDS,  ESQ.,  COUNSELLOR  AT  LAW,  NEW-YORK, 

AND    A    LARGE    BODY    OF 

ADDITIONAL  NOTES, 
BY    JOSIAH    W. -SMITH,    B.    C.    L., 

Of  Lincoln's  Inn,  Barrister  at  Law,  Editor  of  Fearne  on  Remainders,  and  author  of  a 
Treatise  on  Executory  Interest. 


SIXTH  AMERICAN,  FROM  THE  FIFTH  LONDON  EDITION, 

WITH  COPIOUS  AMERICAN  NOTES, 
BY  JOSEPH  W.  MOULTON,  ESQ., 

COUNSELLOR   AT    LAW,   NEW-YORK. 


N  E  W  -  Y  0  R  K  : 

JOHN  S.  VOORHIES,  LAW  BOOKSELLER  AND  PUBLISHER. 

PHILADELPHIA: 

T.     &    J.    W.    JOHNSON. 

1849. 


T 
\$A9 


Entered  according  to  Act  of  Congress,  in  the  year  1849, 
BY    JOHN    S.    VOORHIES, 

In  the  Clerk's  Office  of  the  District  Court  of  the  United  States  for  the 
Southern  District  of  New- York. 


NEW-TORK: 

PRINTED       BY       WILLIAM       OSBORN, 

TKIBtJNE  BUILDINGS. 


3f 

u. 

tl 


AMERICAN  EDITOR  S  PREFACE. 


Fifteen  years  have  elapsed,  since  the  last 
American  edition  of  this  treatise  appeared,  under 
the  supervision  of  Charles  Edwards,  Esquire. 
The  editor  of  this  edition  has  looked  into  subse- 
quent American  authorities,  and  preserved,  in 
brackets,  Mr.  Edwards'  notes  in  the  form  in  which 
they  appeared,  excepting,  where  an  occasional 
omission,  transposition  or  slight  alteration  would 
have  been  deemed  admissible  by  him. 

The  editor  has  adopted  a  mode  of  noting,  which 
may  be  acceptable  to  the  student  and  practising 
solicitor.  Reporters'  head  notes  are  sometimes 
very  inaccurate  or  deficient ;  he  has  therefore  exa- 
mined the  body  of  the  opinions  of  the  court,  and 
thence  deduced  the  rule,  and  given  in  the  language 
of  the  court,  or  in  a  condensed  form,  the  principle 
and  reason.  In  this  way  he  has,  so  far  as  the 
time  allowed  for  preparing  the  edition  permitted, 
endeavored  to  follow,  in  some  measure,  the  spirit 
in  which  the  original   work  was  conceived  and 


77G790 


IV  AMERICAN    EDITORS    PREFACE. 

executed  ;  and  to  save  to  the  solicitor  or  counsel 
the  necessity  of  groping  through  a  long  case  or 
opinion  to  discover  the  precise  point  referred  to,  he 
has  noted  the  page  w^here  it  may  be  seen,  and  not 
merely  the  page  of  the  case. 

The  London  editor  confines  his  notes  to  actual 
decision,  as  "mere  dicta  and  opinions  he  thinks 
tend  to  mislead,"  (Pref.  ix.)  The  American  edi- 
tor has  not  implicitly  follow^ed  his  course.  In  this 
country  our  system  of  equity  pleading  and  pro- 
cedure, are  more  varied  and  fluctuating  than  ir^ 
England.  Each  state  has  its  own  system,  and  the 
United  States'  Courts  theirs ;  but  all  are,  in  many 
respects,  upon  the  English  model.  Nevertheless 
points  are  constantly  arising,  and  the  spirit  of  pro- 
gress that  demonstrates  the  presence  and  vigor  of 
the  democratic  principle  of  our  institutions,  by  no 
means  diminishes  the  number  of  vexed  questions 
that  spring  from  the  collision  of  free  opinion,  and 
the  conflicts  of  our  practical  jurisprudence.  '  Mere 
dicta  and  opinions,'  therefore,  of  our  chancellors 
and  judges,  are  regarded  as  valuable  directions  to 
the  practitioner.  Indeed,  our  courts,  not  unfre- 
quently,  volunteer  direction  or  suggestions  irrele- 
vant to  the  exact  issue  or  merits  of  the  case,  for 
the  sole  purpose  of  preventing  useless  litigation 
and  expense.     And  if]  as  may  be  but  rarely,  such 


AMERICAN     EDITOR  S    PREFACE.  V 

direction  mislead  the  whole  power  of  the  court 
over  amendment  and  costs,  is  of  course,  benefi- 
cially exerted  to  remedy  the  mischief 

In  truth,  no  inconsiderable  portion  of  Lord 
Redesdale's  Treatise  is  made  up  of  opinion,  rest- 
ing on  no  settled  basis  of  approved  decision,  and 
leaning  for  support,  amid  the  conflicts  of  law  on 
an  intricate  science,  solely  upon  his  own  sound  and 
discriminating  judgment.  Nevertheless,  and  as 
remarked  by  the  chancellor,  in  Bogardus  v.  Tri- 
nity Church,  4  Paiges  R.  195,  "His  opinion 
upon  a  case  of  equity  pleadings,  is  always  es- 
teemed the  highest  authority." 

This  allusion  to  the  high  authority  of  Lord 
Redesdale,  is  not  singular.  In  England,  his  treatise 
is  "  received  by  the  whole  profession,  as  an  autho- 
ritative standard  and  guide."  It  was  regarded  on 
its  appearance,  and  characterized  by  one  of  the 
most  scrupulously  hesitating,  yet  able  chancellors 
of  England,  as  "  a  wonderful  effort."  (See  Pref 
to  the  present  London  ed.,  vii.,  viii.) 

In  the  United  States,  it  has  been  esteemed,  by 
the  courts  and  profession,  ever  since  its  introduc- 
tion, a  standard  authority,  so  far  as  its  principles 
applied  to  our  peculiar  judicial  organizations. 
"Lord  Redesdale,  in  his  excellent  Treatise  on 
Equity  Pleadings,"  is  the  usual  mode  of  quotation 


Vi  AMERICAN    EDITOR's    PREFACE. 

by  our  most  distinguished  chancellors  and  judges. 
Like  Blackstone,  Mitford  has  become  a  legal 
classic.  A  strict  analysis  of  both  these  eminent 
authors,  would,  most  unquestionably,  disclose  some 
defects  of  arrangement.  Very  few  writers,  not  ex- 
cepting those  who  have  attempted  to  remedy  the 
presumed  defects  of  Blackstone  and  Mitford,  could 
bear  a  strict  scrutiny  into  their  own  substitutions : 
and,  notwithstanding  Sergeant  Stephens  has  at- 
tempted to  remodel  the  former,  and  Justice  Story 
has  incorporated,  under  a  new  arrangement,  the 
greater  part  of  the  latter,  yet,  the  admirers  of  legal 
genius  will  still  seek  the  identical  Blackstone  and 
Mitford,  in  their  original  arrangement. 

In  New- York,  a  radical  re-construction  of  the 
judiciary  system,  has  recently  taken  place,  and  a 
code  of  procedure  adopted.  The  formal  parts 
of  Equity  Pleading  are  abrogated.  But  the  prin- 
ciples of  Equity  Pleading,  interwoven  as  they  are 
with  every  lucid  development  of  the  merits  of  a 
complaint  or  defence,  are  unaffected  by  those  re- 
forms, and  must  remain  as  an  essential  part  of  a 
skilful  practitioner's  knowledge,  in  presenting  a 
concise  and  correct  statement  of  the  premises,  on 
which  relief  is  asked,  or  of  the  defence  by  which 
such  relief  is  resisted.  J.  W.  M. 

New-  York,  May,  1849. 


PREFACE 

TO   THE 

FIFTH     LONDON     EDITION, 

By  JOSIAH  W.  SMITH,  Esq. 


The  fourth  edition  of  this  admirable  Treatise  was 
pubHshed  in  the  year  1827.  The  long  interval 
which  elapsed  before  it  became  out  of  print  is 
partly  to  be  attributed  to  the  fact  that  the  demand 
for  a  work  on  equity  pleadings  is  almost  entirely 
limited  to  the  Chancery  Bar,  and  partly  to  be  as- 
cribed to  the  publication  of  other  works  on  the 
subject,  which  had  the  advantage  of  containing 
many  cases  reported  since  the  publication  of  the 
fourth  edition  of  this  Treatise.  The  interval  above 
alluded  to  had  no  connexion  with  the  existence  of 
any  unfavourable  opinion  of  this  work,  either 
when  viewed  by  itself,  or  when  compared  with 
any  more  recent  production  ;  for,  as  the  work  was 
originally  characterized  by  Lord  Eldon  as  "  a 
wonderful  effort  to  collect  what  is  to  be  deduced 


Vlll  PREFACE    TO    THE    FIFTH    EDITION. 

from  authorities,  speaking  so  little  what  is  clear  ;"* 
so,  it  was  truly  remarked  by  Sir  Thomas  Plumer, 
that  this  book  "  has  ever  since  been  received  by 
the  whole  profession  as  an  authoritative  standard 
and  guide  ;"t  and  the  same  remark  is  equally  ap- 
plicable to  it  at  the  present  time. 

This  edition  is  reprinted  verbatim  from  the 
fourth  edition,  including  the  references  and  notes 
added  thereto  by  George  Jeremy,  Esq.,  of  Lin- 
coln's Inn,  which  are  printed  in  double  columns 
under  the  text.  The  additions  by  the  present 
editor  consist  of  a  Marginal  Analysis^  of  Notes 
printed  across  the  page,  under  Mr.  Jeremy's  notes, 
and  of  a  long  Note  on  Parties,  for  which  the  end 
of  the  volume  was  considered  the  more  conve- 
nient place. 

The  present  editor's  notes  comprise  the  enact- 
ments and  orders,  relating  to  the  subject  of  equity 
pleading,  which  have  been  made  within  the  period 
extending  from  the  beginning  of  the  year  1826, 
which  was  shortly  before  the  publication  of  the 
fourth  edition,  down  to  the  present  time  with  the 
decisions  reported  within  the  same  period,  whether 
in  the  octavo  Reports,  the  Law  Journal,  or  the 
Jurist,  to  the  number  of  about  six  hundred. 

*  9  Ves.  54.  t  2  Jac.  &  W.  152. 


PREFACE    TO  THE    FIFTH  EDITION.  IX 

The  endeavour  of  the  editor  has  been,  to  divest 
the  cases  of  those  particulars  which  are  of  no  use 
to  the  student,  and  have  no  essential  relevancy  to 
the  matters  with  reference  to  which  such  cases  are 
consulted  by  the  practitioner,  and  to  accomplish 
the  difficult  task  of  moulding  the  essential  parts  of 
the  cases,  and  the  reasons  of  the  decisions,  where 
any  are  expressed,  into  succinct  yet  clearly  ex- 
pressed propositions,  placita,  or  rules,  in  such  a 
way  as  to  exhibit  the  points  and  principles  of 
pleading  which  the  decisions  in  those  cases  serve 
to  establish. 

He  hopes  that  the  notes  he  has  added  will  be 
found  to  consist  of  a  precise  and  perspicuous  enun- 
ciation of  what  may  be  relied  on  as  matter  of 
actual  decision.  Mere  dicta  and  opinions  he  has 
passed  by,  as  too  often  tending  to  mislead.  He 
has  also  for  the  most  part  abstained  from  stating 
general  propositions  founded  on  a  small  number 
of  particular  cases,  as  liable  to  the  same  objection. 
And  while  he  has  avoided  giving  the  cases  in  the 
narrative  or  statement  form,  comprising  names, 
dates,  and  other  unnecessary  particulars,  he  has 
still  endeavoured  to  preserve,  in  the  terms  of  the 
placita,  the  essential,  specific  features  of  each  case, 
because,  if  he  had  not,  such  placita  would  not  ac- 
quaint the  practitioner  with  the  degree  of  resem- 


X  PREFACE  TO  THE  FIFTH  EDITION. 

blance  or  material  difference  between  the  cases 
from  which  they  are  derived  and  the  cases  occur- 
ring in  practice  with  reference  to  which  they  may 
be  consulted.  The  following  quotations  may  suf- 
fice as  illustrations  of  the  propriety  of  the  course 
thus  pursued  :  "  That  case,  so  far  as  it  applies  to 
the  present,  was  a  mere  dictum.  The  decision  it- 
self is  not  applicable!* — "  The  words  attributed 
to  me  were  not  necessary  for  the  purpose  of  the 
decision  :  and  nothing  except  the  decision  is 
authority  which  binds."^ — "  It  is  true  that  the 
dictum  of  Lord  Cottenham  is  more  generally  ex- 
pressed ;  but  all  dicta  should  be  consti'ued  ac- 
cording to  the  circumstances  of  the  case  in  which 
they  are  found. "J — "  It  is  very  difficult  to  say  that 
these  particular  cases  could  have  been  decided 
otherwise  than  they  were  ;  but  the  marginal  notes 
go  much  further  than  the  judgments!' § 

At  the  time  when  the  following  Treatise  was 
written,  the  books  on  equity  jurisprudence  or  juris- 
diction and  on  equity  practice  were  of  a  very 
meagre  kind  ;  and  on  this  account  there  are  parts 

*   See  Sloman  v.  Kelli/,  4  Y.  &  C.  Eq.  Ex.  172. 

t  See  James  v.  Herrioi,  5  Law  J.  (N.  S.)  Ch.  R.,  133  ;  and  com- 
pare Bedford  v.  Gates,  i  Y.  &  C.  Eq,  Ex.  21,  with  Kimher  v. 
Ensworth,  1  Hare,  293. 

I     Alderson,  B  ,  in  Daviesv.  Qiiarterman,  4  Y.  &  C.  Eq.  Ex.  722, 

§  Wigrara,  V.  C.  in  Malcolm  v.  Scott,  3  Hare,  63.  And  see 
Sharpe  v,  Taylor,  11  Sim.  50  ;   and  Barnard  v.  Laing,  6  Jur.  1050. 


PREFACE  TO  THE  FIFTH  EDITION.  xi 

of  this  work  which  relate  to  jurisprudence  or  j  u- 
risdiction  and  practice,  rather  than  to  pleading. 
Of  course  the  notes  of  the  present  editor  are  al- 
most exclusively  confined  to  pleading,  as  that  is 
the  proper  subject  of  the  book,  and  as  the  other 
subjects  now  occupy  a  vast  space,  and  have  been 
separately  and  ably  discussed  by  other  writers. 

In  extenuation  of  any  inaccuracies  and  defects 
which  may  exist  notwithstanding  the  great  care 
which  has  been  bestowed  by  him,  he  must  plead  a 
pressure  of  professional  business  towards  the  close 
of  his  editorial  labors,  which  rendered  it  an  ex- 
tremely arduous  and  exhausting  effort  finally  to 
complete  his  notes,  and  to  superintend  the  print- 
ing of  the  volume. 

J.  W.  S. 

8,  Old  Square,  Lincoln's  Inn. 


PREFACE 

TO   THE 

FOURTH     LONDON    EDITION, 

BY  GEORGE  JEREMY,  Esq. 


Lord  Redesdale  having  honoured  me  with  that 
confidence  which  was  necessary  to  my  superin- 
tending a  new  edition  of  the  following  highly  valu- 
able work,  I  proposed  to  examine  the  authorities 
cited  in  the  last  edition  of  it,  and  to  add  the  refe- 
rences to  such  new  cases  as  might  appear  to  me 
to  elucidate  the  subject,  a  plan  in  which  his  Lord- 
ship was  pleased  to  concur.  In  the  additions  ac- 
cordingly made  by  way  of  note,  I  have  endeav- 
oured, for  the  most  part,  to  confine  myself  to  the 
mere  citation  of  authorities,  generally  selecting 
those  of  the  latest  date  ;  although  I  have  in  some 
instances,  where  the  decisions  did  not  directly 
sustain  or  precisely  apply  to  his  Lordship's  pro- 
positions, but  where,  nevertheless,  notice  of  them 
seemed  material,  made  such  remarks  as  were  ne- 
cessary to  their  introduction.  In  these  respects  I 
have  been  led  into  greater  detail  than  was  origi- 
nally intended  ;  but  it  is  hoped  that  the    practical 


XIV  PRFACE  TO  THE  FOURTH  EDITION. 

utility  of  the  present  publication  will  be  thereby 
increased.  In  referring  to  the  authorities,  I  have 
made  the  distinction,  which  it  is  now  usual  to 
adopt,  between  decisions  and  dicta,  by  citing  the 
name  of  the  case  in  the  one  instance,  and  the  page 
of  the  report  in  the  other.  I  have  also  deemed  it 
expedient  to  render  the  index  more  copious  and 
precise.  His  Lordship  has  made  some  few  addi- 
tions and  alterations  in  tl^e  text,  but  I  have  not 
been  instrumental  in  withdrawing  from  the  Pro- 
fession any  part  of  the  work  itself  And  here  I 
may  be  permitted  to  remark  that  it  has  been  a 
subject  of  great  interest  to  me,  in  the  course  of  my 
inquiries,  to  perceive  that  this  work,  which  in  its 
outline  and  substance  was  the  original  treatise 
upon  equity  pleading,  has  from  the  time  of  its  first 
pubhcation  been  so  far  the  guide  to  subsequent 
decisions  as  to  have  rendered  any  material  cor- 
rection, or  even  qualification  of  the  general  prin- 
ciples explained  in  it,  wholly  unnecessary. 

G.  J. 

1,  New  Square,  Lincoln's  Inn. 


LORD  REDESDALE'S  PREFACE 


THE  THIRD  EDITION. 

The  materials  from  which  the  first  edition  of  this 
Treatise  was  compiled  were  not  very  ample  or 
satisfactory  ;  consisting,  principally,  either  of  mere 
books  of  practice,  or  of  reports  of  cases,  generally 
short,  and  in  some  instances  manifestly  incorrect 
and  inconsistent  ;  and  the  author  had  had  little 
experience  to  enable  him  to  supply  the  deficien- 
cies of  those  materials.  The  communication  of 
information,  and  the  assistance  of  experience, 
were  earnestly  solicited  by  the  preface  to  that  edi- 
tion, but  with  little  effect.  Four-and-thirty  years 
have  since  elapsed  ;  and  when,  at  the  distance  of 
seven  years  from  the  first  publication,  the  second 
edition  was  prepared  for  the  press,  such  observa- 
tions as  had  occurred  to  the  author  in  practice, 
and  such  notes  as  he  had  collected,  were  the 
principal  means  of  improvement  which  he  posses- 
sed ;  and  he  was  then  too  much  engaged  in  busi- 
ness to  give  that  attention  to  the  subject  which  it 
required.      Nearly    eight-and-twenty   years   have 


XVI  PREFACE  TO  THE  THIRD  EDITION. 

since  passed ;  and  many  volumes  of  reports  have 
been  published,  and  some  treatises  have  appeared 
(particularly  those  by  Mr.  Fonblanque  and  Mr. 
Cooper),  from  which  much  assistance  might  have 
been  derived.  During  the  greater  part  of  this  pe- 
riod the  author  was  not  only  unwilling  to  engage 
in  the  labor  of  preparing  a  new  edition,  but  disa- 
bled, by  various  avocations,  from  attempting  to 
make  any  important  additions.  Long  absence 
from  the  bar,  the  consequent  want  of  the  habits  of 
practice,  age,  the  enjoyment  of  repose,  and  the  in- 
dolence which  that  enjoyment  too  often  produces, 
have  increased  his  unwillingness  to  undertake  a 
work  of  labor  ;  and  that  which  is  now  offered  is 
little  more  than  a  republication  of  the  second  edi- 
tion, with  references  to  some  cases  since  reported  ; 
a  few  additional  notes  of  cases  not  reported ;  some 
corrections  of  apparent  errors  ;  and  some  exten- 
sion of  parts  which  appeared  to  have  been  most 
imperfectly  treated  in  the  former  editions.  It  is 
therefore  far  from  satisfactory  to  himself;  and 
would  not  have  been  now  given,  if  he  had  not  been 
assured  that  even  a  republication  of  the  last  edi- 
tion, with  all  its  imperfections,  was  desired  by  the 
Profession. 


CONTENTS. 


•),*   The  pages  here  referred  to  are  those  in  the  margin  within  brackets. 


INTRODUCTION. 


Of  the  extraordinary  jurisdiction  of  the  court  of  Chancery,  and  of  the  manner  in  which  suits  to  that 
jurisdiction  are  instituted,  defended,  aud  brought  to  a  decision  ......         1 


r 


1.  Of  Bills.    Chap.  1. 


f     Chap.  I. 
Sect.  I. 

by  whom,  and< 
against  wiiom, 
a  bill  may  be 
exhibited  .  21 


1.  by 
«  whom 


21. 


1.    On  behalf  of  the" 
crown  and  of  those  who 
partake  of  its  preroga- 
tive or  claim  its  parti- 
cular protection         21 

-{  2.  On  behalf  of  bodies') 
politic  and  corporate, 
and  persons  who  do  not 
partake  of  the  preroga-  - 
tive  of  the  crown,  and 
have  no  claim  to  its  par- 
^ticular  protection    .    24, 


by  the  king's  attor- 
ney-general or  other 
officer      ...    21 


1.  alone  < 

by  them-     „        , 
selves    ^2.  "nder 
the  pro- 
tection 
.of  others 


f  Bodies   politic    and   corpo- 

Irate,  and  all  persons  of  full 
age,  not  being  married  wo- 
men, idiots,  or  lunatics,  24 

fl.  Infants       ....     25 

■|  2.  Married  women,     .     28 

3.  Idiots  and  lunatics       29 


1.  Where   the   rights' 

of  the  crown,  or  of  those 

who  partake  of  its  pre- 

2.  against  J  rogative,    or    claim    its 

whom.    I  particular  protection,are 

I  concerned. 

t     2.  In  all  other  cases 


against  the  king's  attorney-general, 
or  other  proper  officer      .     .     30 


fl.    Origi- 
nal  bills, 
33,  34, 
36,  51. 


Chap.  I. 
Sect.  II. 


Of  the  several  \  II. 
kinds  and  dis- 
tinctions  of 
bills     .     .    33 


'1.  Praying  relief,  34,  37 


2.  Not  praying  relief. 
34,  5  r 


against  all  bodies  politic  and  corporate,  and  all  per- 
sous,  married  women  with  their  husbands,  and 
idiots  and  lunatics  with  their  committees    .    30 

1.  A  bill  praying  the  decree  of  the  court  touching 
I      some  right  claimed  by  the  plaintiff  in  opposi- 

■l      tion  to  the  defendant 34,  37 

I  2.  A  bill  of  interpleader 34,  48 

1^3.  A  certiorari  bill     ...  ... 

1.  A  bill  to  perpetuate  the  testimony  of 
witnesses 

2.  A  bill  for  discoverv 


34,  50 


34,  51 
34,  53 


Bills  not  original 


33,34,551  -• 


A  supplemental  bill 34,  Gl,  75 

A  bill  of  revivor 35,  G9,  76 

A  bill  of  revivor  and  supplement       35,  70,  80 

A  cross  bill       35,  80 

A  bill  of  review 35,  83 


fl- 
2. 
3.  A  bill  in  nature  of  a  bill  of  review 


35,  92 


III.  Bills  in  the  nature  of  original 
bills 33,  35,  80 


4.  A  bill  to  impeach  a  decree  on   the  )  oc    go 

ground  of  fraud )       '     " 

\ 


A  bill  to  suspend  or  avoid  the  execu- 
tion of  a  decree 

6.  A  bill  to  carry  a  decree  into  execution 

7.  A  bill  in  tlio  nature  of  a  bill  of  revivor  36,  71,  79 

8.  A  bill  in  nature  of  a  supplomen- 
V\\  bill       


35,  94 

35,  95 

71,  79 

36,  72,  93 


XVllI 


CONTENTS. 


I.  Of  Bills.     Chap.  I. — continued. 


i  Chap.  I. 
i  Sec.  III. 
Of  the  frame 
and  end  of  the 
■  several  kinds  of 
I  bills,  and  of  in- 
\^  formations .  36 


I. 

Origi- 

nal 

bills,- 

36 

1.  Praying  relief.  37 


'1.  A  bill  praying  the  decree  of  the  court  touching 
some  right  claimed  by  the  plaintiff  in  opposi- 
tion to  the  defendant •    .     .     37 

2.  A  bill  of  interpleader 48 

.3.  A  certiorari  bill 50 


n   -KT  .  ,.  r(  1.  A  bill  to  perpetuate  the  testimony  of  witnesses,  51 

2.  Not  praymg  relief  1  ^    ^  ' 

^^  i  2.  A  bill  for  discovery 53 


II.  Bills  not  original 


III.  Bills  in  the  nature  of 
original  bills      .     .     . 


\IV.  Informations 


fl.  A  supplemental  bill 61,  75 

55  J  2.  A  bill  of  revivor 69,76 


1.3.  A  bill  of  revivor  and  supplement 


70,  80 


80 


f  1.  Cross  bill       80 

2.  Bill  of  review •     ...  83 

3.  Bill  in  nature  of  a  bill  of  review  ....  92 

4.  Bill  to  impeach  a  decree  on  the  ground  of 


fraud 


'  5.  Bill  to  suspend  or  avoid  the  execution  of  a 


decree 


92 


94 


6.  Bill  to  carry  a  decree  into  execution      .     .     95 

7.  Bill  in  the  nature  of  a  bill  of  revivor     .     71,  97 
.     .     90  1. 8.  Bill  in  nature  of  a  supplemental  bill    .     72,  98 


Chap.  II. 
Of  defence  to 
bille  .     .102 


1.  On   behalf  of^ 
the    crown,    or   of 

those  who  partake 

By  whom  a  I    ,  .. 
'  <  of  itsprerogative,or 

are  under  its  parti- 

cularprotection,  1 02 


Chap.  II 
Sec.  I. 


suit    may    be 
defended,  102 


By  the  king's  attorney-general,  or 
other  proper  officer  .      .     .     102 


J 

2.  On  behalf  of 
bodies  politic  and 
corporate,  and  of 
persons  who  do  not 
partakeof  the  prero-  ■{ 
gative  of  the  crown, 
aud  have  no  claim 
to  its  particular  pro- 
tection    .     .     103 


j-  Bodies  politic  and  corporate, 

1.  By  themselves,     I      and  all  persons  of  full  age, 

103  I      not  being  married  women, 

I.     idiots  or  lunatics       .     103 


fl.  Infants      ....     103 
2.  Under  protection  [ 

of,  or  jointly  with, -^  2.  Idiots  and  lunatics  .     103 

others     .     .     103 

ts.  Married  women     .     104 


CONTENTS. 


XIX 


I.  Of  Bills.     Chap.  11.— continued. 


/ 


Chap.  II. 

Sect.  II 

Of  the 

nature  of  the 

various 

modes  of 

defence  to  a 


f  Chap.  II. 
Sect.  II. 
Part  I. 
Demurrers, 
106,  107 


bill 


106 


I.  to 

original 
bills, 
109 


I.  to  re- 
lief, 110 


I.  That  the 
subject  is  not 

witiiin  the 
jurisdiction  ■< 
of  a  court  of 
equity  .110 


lo  *' 

II.  That  some 
other  court  of  equity 
has  the  proper  juris- 
diction  .    110,  151 

III.  That  the 
plaintiff  is  not  en- 
titled to  sue  by 
reason  of  some  per- 
sonal disability, 

110,153 

IV.  That  he  has 
no  interest  in  the 
subject,  or  no  title 
to  institute  a  suit 
concerning  it, 

110,154 

V.  That  he  has 
no  right  to  call  on 
the  defendant  con- 
cerning the  subject, 

110,158 

VI.  That  the  de- 
fendant has  not 
that  interest  in  the 
subject  which  can 
make  him  liable  to 
the  claims  of  the 
plaintiff  .  110,160 

VII.  That  for 
some  reason,  found- 
ed on  the  substance 
of  the  case,  the 
plaintiff  is  not  en- 
titled to  relief, 

110,163 


1.  Where  the 
principles  of  law 
by  which  the  or- 
dinary courts  are 
guided  give  a 
right,  but  the 
powers  of  those 
courts  are  not 
sufficient  to  af- 
ford a  complete 
remedy,  111,112 


1 .  Where  no 
remedy,  or 
no  complete 
remedy, 

112 

2.  Where 
remedy  at- 
tempted is 
defeated  by 
fraud  or  ac- 
cident,   127 


2.  Where  the  courts  of  ordi- 
nary jurisdiction  are  made 
instruments  of  injustice, 

111,  131 

3.  Where  the  principles  of 
law  by  which  the  ordinary 
courts  are  guided  give  no 
right,  but  upon  the  princi- 
ciples  of  universal  justice 
the  interference  of  the  ju- 
dicial power  is  necessary 
to  prevent  a  wrong,  and  the 
positive  law  is  silent, 

111,  133 

4.  To  remove  impediments  to 
the  fair  decision  of  a  ques- 
tion in  other  courts, 

111,  134 

5.  To  provide  for  the  safety  of 
property  in  dispute  pending 
a  litigation      .     .     Ill,  135 

6.  To  prevent  assertion  of 
doubtful  rights  in  a  manner 
productive  of  irreparable  in- 
jury       Ill,  137 

7.  To  prevent  injury  to  a  third 
person  by  the  doubtful  title 
of  others     .     .     .     112,  141 

8.  To  put  a  bound  to  vexatious 
and  oppressive  litigation, 

112,  143 

9.  To  compel  a  discovery, 

112,  148 

10.  To  preserve  testimony, 

112,  148 


XX 


CONTENTS. 


I.  Of  Bills.     Chap.  11.— continued. 


VIII.  That  the 
bill  is  doficieut  to 
answer  the  purposes 
of  complete  justice, 

110,  163 

IX.  That  distinct 
objects  Jire  con- 
founded in  the  same 


bill 


110,  181 


II.  to 

dis- 
covery, 
V^109,  185 


II.  to 
every 
other 

kind  of 
bill, 

201,  206 


I.  That  the  case  made  by  the  bill  is  not  such 
wherein  a  court  of  equity  assumes  a  jurisdiction 
to  compel  a  discovery     ....        185 

II.  That  the  plaintiff  has  no  interest  in  the 
subject,  or  no  interest  which  entitled  him  to  call 
on  the  defendant  for  a  discovery        .       185,  187 

III.  That  the  defendant  has  no  interest  in  the 
subject  to  entitle  the  plaintiff  to  institute  a  suit 
against  him,  even  for  the  purpose  of  discovery, 

185,  188 

IV.  That  there  is  no  privity  of  title  between 
the  plaintiff  and  defendant,  which  can  give  the 
plaintiff  a  right  to  the  discovery       .       185,  189 

V.  That  the  discovery,  if  obtained,  cannot  be 
material 185,  191 

VI.  That  the  situation  of  the  defendant  renders 
it  improper  for  a  court  of  equity  to  compel  a 
discovery 185,  193 


1.  Bills  of  revivor  and  supplemental  bills  .         .  201 

2.  Crossbills 203 

3.  Bills  of  review,  and  bill  in  nature  of  bills  of  review, 
and  bills  to  impeach  a  decree,  or  suspend  or  avoid  its 
execution 203 

4.  Bills  to  carry  a  decree  into  execution     .  206 

5.  Bills  in  the  nature  of  bills  of  revivor,  or  of  bills  of 
supplement  206 


III.     Of  the  frame  of  demurrers,  and  of  the  manner  in  which  their 
validity  may  be  determined 208 


CONTENTS. 


XXI 


L     Of  Bill*.  Chap.  11.— continued. 


Chap.  II. 
Sect.  II. 
Part.  II. 

Pleas, 
106,  218 


1.  to 

original 
bills,  220 


/^    1.  to 
relief, 
220 


fl.  That  the  subject 

is  not  within  the 

jurisdiction  of  a 

court  of  equity, 

222 

2.  That  some  other 
court  of  equity, 
has  the  proper 
jurisdiction  .  223 


1.  That  the  plaintiff  is  out- 
lawed    .  226 


2.  Excommunicated, 

3.  A  popish  recusant, 


3.  That  the  plaintiff 

is  not  entitled  to 

sue  by  reason  of/ 

somepersonaldis- 1  4.  Attainted 

ability    .    .    226    ,     . 

5.  An  alien 


227 
228 
228 
229 


6.  Incapable  of  instituting  a 
\        suit  alone        .        229 

4.  That  the  plaintiff  is  not  the  person  he  pretends 
to  be,  or  does  not  sustain  the  character  he 
assumes 230 

5.  That  the  plaintiff  has  no  interest  in  the  subject, 
or  no  right  to  institute  a  suit  concerning  it,  231 

6.  That  he  has  no  right  to  call  on  the  defendant 
concerning  it 234 

7.  That  the  defendant  is  not  the  person  he  is 
alleged  to  be,  or  does  not  sustain  the  character 
he  is  alleged  to  bear   ....        234 

8.  That  the  defendant  has  not  that  interest  in  the 
subject  which  can  make  him  liable  to  the  de- 
mands of  the  plaintiff         .        .        .        235 


9.  That  for 
some  reason 
founded  on  the 
substance  of  the 
case,  the  plain- 
tiff is  not  en- 
titled to  relief, 
236 


1.  Matters  of 
record,  or  as 
of  record  in 
a  court  of 
Equity,     236 

2.  Matters  of 
record,  or  as 
of  record  in 
some  court 
not  a  court  of 

\,   equity,     250 


'1.  A  decree  or 
order,       237 

2.  Another  suit 
depending, 

246 

1.  A  fine,    250 

2.  A  recovery, 
253 

3.  A  judgment 
,orBeutence,253 


XXII 

I.     Of  Bills.  Chap.  II.— continued. 


CONTENTS. 


3.  Mat- 
ters in 
pais, 
258 


^1.  A  stated  account    .  259 

2.  An  award .     .     .     .260 

3.  A  release  ....  261 

4.  A  will  or  convey  ance,263 

5.  Circumstances  bringing  a 
case  within  the  protection 

I,    of  a  statute      .     .     .  265 


10.  That  supposing  the  plaintiff  entitled  to  the 

assistance  of  the  court  to  assert  a  right,  the 
defendant  is  equally  entitled  to  the  protection 
of  the  court  to  defend  his  possession     .  974 

11.  That   the  bill  is  deficient  to  answer  the  pur- 
of  complete  justice 280 

1.  That  the  plaintiff's  case  isnotsuch 
as  entitles  a  court  of  equity  to  as- 
sume a  jurisdiction  to  compel  a 
discovery  in  his  favor     .     .  _  282 

2.  That  the  plaintiff  has  no  interest  in 
the  subject,  or  no  interest  which 
entitles  him  to  call  on  the  defen- 
dant for  a  discovery      .     .     282 

3.  That  the  defendant  has  no  interest 
in  the  subject  to  entitle  the  plain- 
tiff to  institute  a  suit  against  him, 
even  for  the  purpose  of  discovery 

283 


2.  to  discovery,  281  ( 


4.Thatthesitua. 
tion  of  the  de- 
fendant renders 
it  improper  for^ 
a  court  of  equity 
to  compel  a  dis- 
covery    .    284 


\ 


1.  Because  the  dis- 
covery may  sub- 
ject the  defen- 
dant to  pains  and 
penalties   .     284 

2.  Because  it  will 
subject  him  to  a 
forfeiture  .    286 

3.  Because  it  would 
betray  the  trust 
reposed  in  a 
counsel, attorney, 
or  arbitrator,  288 

4.  Because  be  is  a 
purchaser  for  a 
valuable  consi- 
deration, without 
notice  of  the 
plaintiff's  title, 

288 


CONTENTS. 


XXlll 


1.     Of  Bills.     Chap.  II. — continued. 


•2.  to  bills  I 

not  ori-     >  1 .  To  bills  of  revivor  and  supplemental  bills  289 

ginal,  288  I 

,'  1.  Cross  bills 290 


3.  to  bills 

in  the 

nature  of 

original 

bills,  290 


2.  Bills  of  review,  and  bills  in  nature  of  bills  of  review, 
and  bills  to  impeach  a  decree,  or  suspend  or  avoid 
its  execution     ......         291 


3.  Bills  to  carry  decrees  into  execution 


293 


4.  Bills  in  tlie  nature  of  bills  of  revivor,  or  of  supple- 
mental bills 293 


1.  The  nature  of  pleas  in  gener£il 

2.  Their  form 


294 
300 


3.  The  manuer  in  which    they   are   offered   to  the 

court 301 

4.  The  manner  in  which  their  validity  is  decided,  301 


Chap.  II. 
Sect.  II. 
Part.   III. 


and  dis- 
claimers, 
106,  306 


1.  The  general  nature  of  answers 

2.  The  form  of  an  answer 


306 
313 


1.  Answers/ 3    The  manner  in  which  the  sufficiency  of  answers  is  decided 


upon,  and  their  deficiency  supplied     . 
4.  The  nature  and  form  of  disclaimers     . 


315 

318 


Chap.  III. 
Of  replications  and  their 
consequences     .     321 

Chap.  IV. 
Of  incidents  to  pleadings 
in  general       .     .     324 


2.  Demurrers,  pleas,  answers,  and  disclaimers,  or  any  two  or  more  of  thena 
jointly 319 

1.  Of  general  replications 321 

2.  Of  special  replications,  and  the  subsequent  pleadings  anciently  used,         321 

3.  Of  subpoeua  to  rejoin,  and  rejoinder  .  ....         323 


INTRODUCTION. 


Of  the  extraordinary  jurisdiction  of  the  Court  of 
Chancery  ;  and  of  the  manner  iii  which  suits  to 
that  jurisdiction  are  instituted,  defended,  and 
brought  to  a  decision. 

The  Chancery  of  England  has  various  offices  and  ordinary  and 

.      T        .  *    mi  •  •        •      ]•     i*  •       extraordinary 

lurisdictions.     The  most  important  lurisdiction  is  jurisdictions  of 

"  i-  "  the  court  of 

that  which  it  exercises  as  a  court  of  equity,  usually  chancery. 
styled  its  extraordinary  jurisdiction,  to  distinguish 
it  frjom  those  which  are  termed  its  ordinary  juris- 
dictions, and  are  chiefly  incident  to  its  ministerial 
offices,  and  the  privileges  of  its  officers. 

The  exercise  of  this  extraordinary  jurisdiction  by  ^^^^^^^^  .^^_ 
courts  distinct  from  those  usually  styled  courts  of  ci^^ed°by'distVnct 

,  I'll  !•  ^       •     •    ^       ^'  /.courts   is  pecu- 

common  law,  to  which  the  ordinary  administration  oi  liartothiscoim- 
justice  in  civil  suits  is  intrusted,  seems  to  be,  in  a 
great  degree,  a  peculiarity  in  the  jurisprudence  of  the 
country,  but  pervading  the  whole  system  of  its  judi- 
cial polity.  '  The  origin  of  these  courts  is  involved  in  onjnnandjtirij- 
great  obscurity  (1)  ;  their  authority  has  been  formerly  cS  °^  ^^^'^ 

(1)  On  this  subject,  see  Mr.  Spence's  very  learned  work  on  "  The 
Eq.iitablo  Jurisdiction  of  the  Court  of  Chancery." 

The  iiislory.  jurisdiction,  organization  and  practice  of  Equity  Courts, 
in  England  and  in  the  United  States,  are  tlie  subjects  of  numerous 
volumes,  since  Mitford'a  treatise  was  written.    "  At  the  time  it  was 


2  EXTRAORDINARY    JURISDICTION 

questioned,  and  the  subjects  and  limits  of  their  juris- 
[2]      diction  were  then  but  imperfectly  ascertained.  Time 

written,  the  books  on  equity  jurisprudence  or  jurisdiction,  and  on 
equity  practice,  were  of  a  very  meagre  kind,"  and  to  this  account  the 
English  editor  ascribes  parts  of  this  work  which  are  foreign  from  its 
proper  subject — pleading ;  and  to  this  he  has  of  course,  almost  ex- 
clusively confined  his  notes.     (Pref.  vii.) 

So  far  as  the  quest ioH  of  jurisdiction  over  parties  and  matters  in 
controversy,  is  connected  with  the  pleadings,  it  necessarily  forms  an 
appropriate  subject  of  attention,  as  will  appear  in  the  sequel.  The 
undefined  character  of  equity  power  in  many  of  the  State  Courts  in 
the  United  States,  often  gives  rise  to  that  question.  Indeed  these 
courts  are  so  varied  in  the  nature  and  extent  of  their  equity  jurisdic- 
tion, as  to  have  been  classified  under  four  heads.  1.  Those  in  which 
equity  is  administered  in  a  court  entirely  distinct  from  the  common  law 
courts,  as  in  New  Jersey,  Delaware,  South  Carolina  and  Mississippi ;. 
2.  Partially  so,  as  lately  in  the  court  of  chancery  of  New  York,  and 
by  the  circuit  judges  acting  as  vice  chancellors  ;  and  in  Maryland,  Vir- 
ginia, Missouri  ;  3.  Where  the  jurisdiction  at  common  law  and  the 
general  powers  of  equity  are  vested  in  one  tribunal,  as  in  New  York, 
since  its  chancery  court  was  abolished,  and  in  Vermont,  Connecticut, 
North  Carolina,  Georgia,  Ohio,  Indiana,  Illinois,  Kentucky,  Tennessee, 
Alabama  ;  4.  Where  no  general  chancery  powers  are  exercised  by  any 
of  the  state  courts,  as  in  Massachusetts,  Maine,  New  Hampshire, 
Rhode  Island,  Louisiana  and  Pennsylvania.  (See  Intro,  to  Barbour  cj- 
Harrington^ s  Equity  Digest.)  This  classification,  which  may  in  a 
few  instances,  by  the  recent  adoption  of  new  state  constitutions,  be 
susceptible  of  some  modification,  shows  at  least  the  diversity  of  equity 
jurisdiction  in  this  country. 

Under  the  last  class  in  Massachusetts,  certain  equity  powers  have, 
from  time  to  time,  been  conferred  upon  the  supreme  judicial  court  of 
that  state.  Here,  as  in  similar  courts  of  like  limited  powers,  the  ques- 
tion of  jurisdiction  has  not  unfrequently  arisen  on  statutory  interpreta- 
tion, and  the  construction  of  incidental  powers.  Though  it  is  now 
well  established  in  that  state,  that  the  court  will  not  take  cognizsnce- 
of  any  subject  matter  or  case  in  equity,  unless  they  are, authorized  ex- 
pressly so  to  do  by  statute ;  yet  it  is  equally  well  established  that  when 
the  court  has  jurisdiction  of  any  subject  matter  or  case  in  equity,  it  i& 
clothed  with  full  and  ample  power,  and  generally,  will  proceed  in  the 
same  manner  as  courts  of  similar  jurisdiction  do  in  England.  (  Wash- 
burn  V.  Goodman,  17  Pickering's  Rep.  529.  519.")  But  where  it  has 
no  original  jurisdiction  of  the  matter  or  case,  it  assumes  none  by  vir- 
tue of  any  general  equity  power.  Hence  it  has  been  decided,  that  it 
has  no  jurisdiction  over  an  equitable  mortgage  :  as  where  a  deed  was 


OF    THE    COURT    OF    CHANCERY. 

has  iriven  them  fall  establishment,  and  their  powers 
and  duties  have  become  fixed  and  acknowledged. 

given  and  a  written  promise,  not  under  seal,  delivered  back,  to  recon- 
vey  on  repayment  of  the  consideration  money.  (Eaton  v.  Green,  22 
Pick.  Rep.  526.  529,  et  seq.)  Nor  has  it  jurisdiction  in  equity  over  a 
direct  charge  of  fraud.  When  on  other  grounds  it  has  jurisdiction  of 
the  cause,  and  a  fraud  is  brought  in  question  as  incidental,  the  court 
must  inquire  into  and  decide  it,  as  any  other  question  which  might  be 
incidentally  put  in  issue  in  the  progress  of  such  a  cause.  {Flske  v. 
Slack,  21  Pick.  Rep.  366.  361.  Hvllavd  v.  Criift,  20  id.  321.)  Nor 
has  the  general  power  of  reforming  contracts,  as  a  distinct  branch  of 
equity  jurisdiction  been  conferred  on  that  court.  {Babcock  v.  Smith 
etal,  21  Pick.  Rep.  61.) 

The  courts  of  the  United  States,  like  the  state  courts  under  the- 
third  head  of  the  above  classification,  exercise  a  jurisdiction  of  mixed 
equity  and  law,  not  regulated  by  state  legislation  nor  practice.  The 
general  rule  is,  that  remedies  in  respect  of  real  estate  accord  to  the 
law  of  the  place.  The  lex  loci  rei  sitce  may  be  satisfied  by  construing- 
local  statutes  so  as  to  give  validity  to  title,  leaving  the  lex  fori  to  regu- 
late the  remedies  to  enforce  such  title.  But  the  remedies  in  the  United 
States  courts  are,  by  interpretation  of  thejudiciary  act,  conformed  to  the 
English  principles  of  equity  and  common  law,  not  to  the  peculiar  prac- 
tice of  the  state  courts.  Their  equity  jurisdiction  and  jurisprudence 
are  coincident  and  coextensive  with  the  English,  and  are  not  regulated 
by  the  municipal  jurisprudence  of  the  state  where  the  court  sits  ;  and 
their  practice  is  based  on  that  of  the  court  of  chancery  in  England, 
not  the  court  of  exchequer.  (Roberson  v.  Campbell,  3  Wheal.  212. 
4  Cond.  Rep.  238-9.  235,  and  note  p.  240.  Vid.  U.  S.  v.  Hnicland,  4 
Wheat.  108.  4  Cond.  Rep.  404.  408,  n.  Fletcher  et  al.  v.  Morey,  2 
Story's  Rep.  567.  553.  Smith  v.  Burnham,  2  Sumner's  Rep.  626.) 
Hence,  as  tlieir  general  equity  jurisdiction  is  not  controlled  nor  limited 
by  state  legislation,  it  is  no  objection  that  there  is  a  remedy  by  the 
latter.  {Gordon  v.  Hobart,  2  Sumner's  Rep.  403.  401.)  (See  further 
on  the  equity  jurisdiction  of  the  United  States  and  state  court;-,  origi- 
nal, appellate,  concurrent  and  assistant ;  and  the  manner  in  which  suits 
are  instituted,  defended,  and  conducted  to  a  decision  here:  Kent's 
Commentaries.  Story's  Com.  on  the  Constitution  and  on  Eqtiity  Juris. 
Conklln's  Treatise.  Barbour's  Practice.  Graham  on  Jurisdiction. 
Note  of  Amer.  editor  to  5  Amer.  ed.  of  Mitford,  p.  19,  n.  (1).) 

The.  principles,  rules  and  usages  of  the  high  court  of  chancery  of 
England,  have  supplied  the  model  also,  of  equitable  procedure  in  the 
state  courts,  of  which  some,  as  New  York  and  Massachusetts,  have 
by  rule,  adopted  the  English,  as  the  outlines  of  their  practice,  bo  far  as 


3  EXTRAORDINARY    JURISDICTION 

If  any  doubt  on  the  extent  of  their  duties  has  occurred 
of  late  years,  it  has  principally  arisen  from  the  li- 

it  is  not  repugnant  to  state  constitution,  laws,  and  rules  of  court. 
(See  in  Massachusetts,  24  Pick.  Rep.  419.  34.)  But  these  have  intro- 
duced in  some  instances,  (such  as  in  suits  for  foreclosure  and  sale,  par- 
tition, divorce  cases,  judgment  creditor  suits,  and  some  ot!"'ers,)  modes 
of  equitable  remedy  and  procedure,  either  entirely  unknown  or  mate- 
rially variant  from  the  English  chancery  system.  "  The  most  general 
"description  of  a  court  of  equity  is,  that  it  has  jurisdiction  in  cases 
.^  "  where  a  plain,  adequate  and  complete  remedy  cannot  be  had  at  law — 

"  that  is,  in  the  common  law  courts.  The  remedy  must  be  plain  ;  for 
"if  it  be  doubtful  and  obscure  at  law,  equity  will  assert  a  jurisdiction. 
"  So,  it  must  be  adequate  at  law  ;  for  if  it  fall  short  of  what  the  party 
"is  entitled  to,  that  founds  a  jurisdiction  in  equity.  And  it  must  be 
"complete — that  is,  it  must  attain  its  full  end  at  law  ;  it  must  reach 
"  the  whole  mischief,  and  secure  the  whole  right  of  the  party,  now 
"  and  for  the  future  ;  otherwise  equity  will  interpose  and  give  relief. 
"  The  jurisdiction  of  a  court  of  equity  is  sometimes  concurrent  with 
."  that  of  courts  of  law ;  and  sometimes  it  is  exclusive.  It  exercises 
"concurrent  jurisdiction  in  cases  where  the  rights  are  purely  of  a  legal 
"nature,  but  where  other  and  more  efficient  aid  is  required  than  a 
"  court  of  law  can  aflord,  to  meet  the  difficulties  of  the  case  and  insure 
"  full  redress.  In  some  of  these  cases,  courts  of  law  formerly  refused 
"  all  redress,  but  now  will  grant  it.  But  the  jurisdiction  having  been 
"  once  justly  acquired,  at  a  time  when  there  was  no  such  redress  at 
"least  it  is  not  now  relinquished."  (See  the  article  from  which  the 
above  is  extracted,  in  Encyclopedia  Americana,  and  approved  by  Profes- 
sor Amos  in  his  lecture  upon  "  What  are  Courts  of  Equity  ?"  and  edi- 
tor's note  to  6  Amer.  ed.  p.  25,  n.  (1).) 

But  the  court  of  chancery  will  not  refuse  jurisdiction  of  a  case 
merely  on  the  ground  that  complainant  has  a  perfect  remedy  at  law,  if 
the  parties  have  submitted  themselves  to  the  jurisdiction  of  the  chan- 
cellor without  objection.  In  such  case  when  the  parties  expressly 
stipulate  to  waive  the  objection  and  submit  the  case,  the  court  will 
apply  the  maxim,  modus  et  conveniio  vincunt  legem,  even  to  a  question 
of  jurisdiction.     (Bank  of  Utica  v.  City  of  Ulica,  4  Paige  Rep.  400-1.) 

Mr.  Story,  however,  says,  (Equity  PI.  c.  2,  §  10,  4  ed.  p.  9,)  that 
"  consent  cannot  confer  a  jurisdiction  not  vested  by  law."  This  would 
perhaps  be  more  particularly  applicable  to  courts,  such  as  the  supreme 
judicial  court  of  Massachusetts,  whose  equity  powers  have  been  dealt 
out  to  the  court  from  time  to  time  by  statute.  Beyond  the  limits  thus 
prescribed,  it  may  be  that  "  every  excess  would  amount  to  a  usurpa- 
tion which  would  make  its  decretal  orders  a  nullity,  or  infest  them 


OF    THE    COURT    OF    CHANCERY. 

berality  with  which  the  courts  of  common  law  have 
noticed  and  adopted  principles  of  decision  estab- 
lish in  courts  of  equity;  a  liberality  generally  con- 
ducive to  the  great  ends  of  justice,  but  which  may 
lead  to  great  inconvenience,  if  the  whole  system  of 
the  administration  of  justice,  by  courts  of  equity, 
the  extent  of  their  powers  and  means  of  proceeding, 
the  subservience  of  their  principles  of  decision  to 
the  principles  of  the  common  law,  the  preference 
which  they  have  allowed  to  common-law  rights 
where  in  conscience  the  parties  have  stood  on  equal 
grounds,  and  the  defect  in  the  powers  of  the  court 
of  common  law  arising  from  their  mode  of  proceed- 
ing, should  not  be  fully  considered,  in  all  their  con- 
sequences (a). 

(a)  See  Lord    Hardwicke's    judgment    in    Wortley    and  Birkhead,    2 
Ves.  573,  574.     And  see  6  Ves.  39. 

with  a  ruinous  infirmity."  (lb.)  But  where  courts  of  equity  have 
long  existed,  or  are  created  with  the  usual  general  powers  of  such 
courts,  it  might  not  be  easy,  in  all  cases,  to  define  with  exact  precision 
what  jurisdiction  the  law  has  conferred;  and  it  might  readily  be  con- 
ceived that  consent  to  waive  any  ■  objection  on  that  ground,  might 
sometimes  be  recognized  on  the  principle  of  the  maxim  in  the  above 
case.  The  court  will  not  in  first  instance  assume  jurisdiction  where  it 
is  clear  that  it  has  none.  Such,  at  least,  is  the  doctrine  of  the  present 
day;  notwithstanding  the  history  of  the  English  courts,  whence  our 
own  shows  a  long  series  of  conflicts  of  jurisdiction,  and  reciprocal 
"  usurpations,"  until  the  concurrent  and  assistant  jurisdiction  of  chan- 
cery, and  the  equity  of  the  law  courts,  have,  through  the  aid  of  the 
semi-legislation  of  the  judiciary,  very  much  confounded  the  original 
boundaries  of  their  respective  jurisdictions  ;  and  in  New  York,  by  re- 
cent constitution  and  enactment,  the  jurisdictions  are  at  last  blended, 
and  an  uniform  mode  of  procedure  established.  But  where  such  is 
not  the  case,  the  court  will  not  become  the  instrument  of  fraud,  or 
lend  its  aid  so  as  to  enable  a  party  to  defeat  his  own  deliberate  act,  or 
take  advantage  of  his  own  wrong,  who  has  expressly  stipulated  to 
waive  objection  and  submit  his  case  where  a  question  of  jurifdiction 
might  have  otherwise  been  raised,  if  interposed  in  due  time  and  form. 


2 


2  EXTRAORDINARY   JURISDICTION 

SSpaUaw."""  I"  the  construction  of  every  system  of  laws,  the 
principles  of  natural  justice  have  been  first  con- 
sidered ;  and  the  great  objects  of  municipal  laws 
have  been,  to  enforce  the  observance  of  those  prin- 
ciples, and  to  provide  a  positive  rule  where  some 
rule  has  been  deemed  necessary  or  expedient  and 
natural  justice  has  prescribed  none.  It  has  also 
been  an  object  of  municipal  law  to  establish  modes 
of  administering  justice. 

3  [3]  The  wisdom  of  legislators  in  framing  positive 
SJ'ction  bi!^  Isms  to  answer  all  the  purposes  of  justice  has  ever 
law'^^requity,  bccu  fouud  uucqual  to  the  subject ;  and  therefore, 

in  all  countries,  those  to  whom  the  administration 
of  the  laws  has  been  entrusted,  have  been  compel- 
ied  to  have  recourse  to  natural  principles,  to  assist 
them  in  the  interpretation  and  application  of  posi- 
tive law,  and  to  supply  its  defects  ;  and  this  resort 
to  natural  principles  has  been  termed  judging  ac- 
cording to  equity.  Hence  a  distinction  has  arisen 
in  jurisprudence  between  positive  law  and  equity  ; 
but  the  administration  of  both  has  in  most  countries 
been  left,  at  least  in  their  superior  courts  to  the  same 

and  of  the  dis-        .,  ,_  ...^  ^  ,. 

cretion  to  vary  tribuual.      lu  prcscribmo^.  lorms  oi  proceedms  in 

or  add  forms.  .         /  . 

courts  of  justice  human  foresight  has  also  been 
defective  ;  and  therefore  it  has  been  commonly  sub- 
mitted to  the  discretion  of  the  courts  themselves,  to 
vary  or  add  to  established  forms,  as  occasion  and  the 
appearance  of  new  cases  have  required. 
d^Id°anuge*°of  ^^^  Euglaud  0.  policy  somewhat  different  has  pre- 
teecommo^iaw  vailcd.  Thc  courts  established  for  the  ordinary  ad- 
ministration of  justice,  usually  styled  courts  of  com- 
mon law,  have,  as  in  other  countries,  recourse  to 
principles  of  equity  in  the  interpretation  and  appli- 


OF    THE    COURT    OF    CHANCERY.  3 

cation  of  tlie  positive  law :  but  they  are  bound  to 
establish  forms  of  proceeding  ;  are  in  some  degree 
hmited  in  the  objects  of  their  jurisdiction  ;  have 
been  embarrassed  by  a  rigid  adherence  to  rules  of 
decision,  originally  framed,  and  in  general  retained, 
for  wise  purposes,  yet,  in  their  application,  some- 
times incompatible  with  the  principles  of  natural 
and  universal  justice,  or  not  equal  to  the  full  appli- 
cation of  those  principles  ;  and  the  modes  of  pro-  [4] 
ceeding  in  those  courts,  though  admirably  calculated  4 

for  the  ordinary  purposes  of  justice,  are  not  in  all 
cases  adapted  to  the  full  investigation  and  decision 
of  all  the  intricate  and  complicated  subjects  of  liti- 
gation, which  are  the  result  of  increase  of  com- 
merce, of  riches,  and  of  luxury,  and  the  consequent 
variety  in  the  necessities,  the  ingenuity,  and  the 
craft  of  mankind.  Their  simplicity,  clearness  and 
precision,  are  highly  advantageous  in  the  ordinary 
administration  of  justice  ;  and  to  alter  them  mate- 
rially would  probably  produce  infinite  mischief:  but 
some  change  would  have  been  unavoidable  if  the 
courts  of  common  law  had  been  the  only  courts  of 
judicature. 

Early  therefore  in  the  history  of  our  jurispru-  [|ono7Jh^ejuru! 


deuce  the  administration  of  justice  by  the  ordinary  ^j.';t'°"°f*^o«i'w 


;  juri*' 
f  equity, 

courts  appears  to  have  been  incomplete,  and  to  sup- 
ply the  defect  the  courts  of  equity  have  exerted 
their  jurisdiction  :  assuming  the  power  of  enfor- 
cing the  principles  upon  which  the  ordinary  courts 
-also  decide,  when  the  powers  of  those  courts,  or 
their  modes  of  proceeding,  are  insufficient  for  the 
purpose  ;  of  preventing  those  principles,  when  en- 
forced by  the  ordinary  courts,  from  becoming  (con- 


EXTRAORDINARY    JURISDICTION 

trary  to  the  purpose  of  their  original  establishment)^ 
instruments  of  injustice  ;  and  of  deciding  on  princi- 
ples of  universal  justice,  where  the  interference  of 
a  court  of  judicature  is  necessary  to  prevent  a 
wrong,  and  the  positive  law,  as  in  the  case  of  trusts^ 
[5]  is  silent  (b).  The  courts  of  equity  also  adminis- 
ter to  the  ends  of  justice,  by  removing  impediments 
to  the  fair  decision  of  a  question  in  other  courts  ; 
by  providing  for  the  safety  of  property  in  dispute 
pending  a  litigation;  by  preserving  property  in 
danger  of  being  dissipated  or  destroyed  by  those 
to  whose  care  it  is  by  law  intrusted,  or  by  persons 
having  immediate  but  partial  interests  ;  by  restrain- 
ing the  assertion  of  doubtful  rights  in  a  maimer 
productive  of  irreparable  damage  ;  by  preventing 
injury  to  a  third  person  from  the  doubtful  title  of 
others ;  and  by  putting  a  bound  to  vexatious  and 
oppressive  litigation,  and  preventing  unnecessary 
multiplicity  of  suits  :  and,  without  pronouncing  any 
judgment  on  the  subject,  by  compelling  a  disco- 
very, or  procuring  evidence,  which  may  enable  other 
courts  to  give  their  judgment ;  and  by  preserving 
testimony  when  in  danger  of  being  lost  before  the 
matter  to  which  it  relates  can  be  made  the  subject 
of  judicial  investigation  (c). 

(6)  Principlesof  decision  thus  adop-  152.     Pluraqiie  quae  usu  fori  compro- 

ted  by  the  courts   of   equity,   when  bata,  denique  juris  script!  auctorita- 

fully    established     and     made     the  tern  propter   vetustatein  obtinueruut 

grounds  of  successive   decisions,  are  Cic.  de  invent,  lib.  2,  c.  22.     Hienecc. 

considered  by  those  courts  as  rules  de  edict,  preet.  lib.  1,  c.  6,  p.  129. 
to  be  observed  with  as  much   strict-         (c)  It  is  not  a  very  easy  task  ac- 

ness  as  positive  law.     See  the  judg-  curately  to   describe  the  jurisdiction 

ment  of  Sir  Joseph  Jekyll,  quoted  by  of  our    courts    of    equity(l).      This- 

Sir  Thomas  Clarke,  in  Blackst.  Rep.  general   description,  though   imper- 

(1)  As  to  the  nature  of  equity  jurisprudence  and  the  extent  of  equity 
jurisdiction,  see  Smitii's  Manual  of  Equity,  Introd,  sect.  J. 


OF    THE    COURT    OF    CHANCERY. 


This  establishment,  as  before  obsen^ed,  has  ob- 
tained throughout  the  system  of  our  judicial  polity; 
most  of  the  branches  of  that  system  having  their  g 

peculiar  courts  of  equity  {d),  and  the  court  of  chan-       [6] 
eery  assuming  a  general  jurisdiction,  which  extends 
to  cases  not  within  the  bounds  or  beyond  the  po- 
wers of  other  jurisdictions  (e). 

The  existence  of  this  extraordinary  jurisdiction,  fet™^adm** 

T       .  /»  1  -1  •  11     istration  of  equi- 

entirely  distmct  from  the  ordinary  courts,  though  ty. 
frequently  considered  as  an  enormity  requiring  re- 
dress, has  perhaps  produced  a  purity  in  the  admi- 
nistration' of  justice  which  could  not  have  been  «. 
effected  by  other  means ;  and  it  is  in  truth,  in  a  causes  of  it. 


feet,  and  in  some  respects  inaccurate, 
is  offered  only  for  the  purpose  of  elu- 
cidating the  following  treatise,  in  the 
course  of  which  the  subject  must  be 
in  many  points  more  fully  considered. 

{d)  Thus  the  court  of  exchequer, 
established  for  the  particular  purpose 
of  enforcing  the  payment  of  debts 
due  to  the  king,  and  incidentally  ad- 
ministering justice  to  the  debtors  and 
accountants  to  the  Crown,  has  its 
ownpeculiar  court  of  equity(l).  The 
courts  of  Wales,  of  the  Counties 
Palatine(2),  of  London,  of  the  Cinque 
Forts,  and  other  particular  jurisdic- 
tions, have  also  their  peculiar  courts 
of  equity. 

(e)  The  court  of  equity  in  the  ex- 
chequer chamber  is  also  frequently 
considered  as  a  court  of  general  ju- 
risdiction, and  in  eSect  it  is  so,  in  a 
great  degree,  though  in  principle  it 


is  not.  For  its  jurisdiction  is  in  strict- 
ness confined  to  suits  of  the  crown, 
and  of  debtors  and  accountants  to 
the  crown  ;  and  a  suggestion,  the 
truth  of  which  the  court  will  not  per- 
mit to  be  disputed,  "  that  its  suitor 
"  is  a  debtor  and  accountant  to  the 
"  crown,"  is  still  used  to  give  it  more 
extensive  jurisdiction.  This  practice, 
as  well  as  a  similar  fiction  used  to 
give  general  jurisdiction  to  the  com- 
mon law  court  in  the  exchequer,  and 
the  fiction  used  to  give  jurisdiction  to 
the  court  of  king's  bench  in  a  variety 
of  civil  suits  of  which  it  has  not 
strictly  cognizance,  may  appear  the 
objects  of  censure  ;  but  they  have 
probably  had  the  effect  of  preventing 
that  abuse  of  power  which  is  too  of- 
ten the  consequence  of  the  single  ju- 
risdiction of  one  supreme  court. 


(1)  By  the  stat.  5  Vict.  c.  5,  s.  1,  the  equitable  jurisdiction  of  "the 
court  of  exchequer  is  transferred  to  the  court  of  chancery. 

(2)  The  courts  of  the  county  pilatine  of  Chester  and  the  Princi- 
pality of  Wales  have  been  abolished  by  Uie  Btat.  11  Geo.  IV.  and  1, 
Will.  IV.  c.  70,  s.  14. 


7  EXTRAORDINARY     JURISDICTION 

great  degree,  a  consequence  of  that  jealous  anxiety 
with  which  the  principles  and  forms  established  by 
the  common  law  have  been  preserved  in  the  ordi- 
[7]  nary  courts  as  the  bulwarks  of  freedom,  and  of  the 
absolute  necessity  of  preventing  the  strict  adherence 
to  those  principles  and  forms  from  becoming  intol- 
erable. 
inent"oTa%uit  A  suit  to  thc  oxtraordiuary  juHsdictiou  of  the 
court  of  chancery,  on  behalf  of  a  subject  merely,  is 
commenced  by  preferring  a  bill,  in  the  nature  of  a 
petition  (/),  to  the  lord  chancellor,  lord  keeper,  or 
lords  commissioners  for  the  custody  of  the  great 
seal  (g)  ;  or  to  the  king  himself  in  his  court  of 
chancery,  in  case  the  person  holding  the  seal  is  a 
party  (h),  or  the  seal  is  in  the   kind's  hands  (i). 

Commence-  t>  r< 

ment  of  suit  by  But  if  the  suit  is  instituted  on  behalf  of  the  Crown 

inionuation. 

(k),  or  of  those  who  partake  of  its  prerogative  (J), 
or  whose  rights  are  under  its  particular  protection, 
as  the  objects  of  a  public  charity  (m),  the  matter 
of  complaint  is  offered  to  the  court  by  way  of  in- 
,§  formation,  given  by  the  proper  officer  and  not  by 

[8]     way  of  petition  (n).     Except  in  some  instances  (o), 

(/)  9  Edw.  IV.  41;  Prac.  Reg.  p.  R.  182;     2  Prax.  Aim.  Cur.  Cane. 

57,  Wyatt's  edit.      This  book,  and  463 ;     Ld.    Chan.    JefFeries    against 

other  books  of  practice,  are  only  cited  Wilherly. 

where  no  other   authority  occurred,  (i)   1  West.  Symb.  Cha.  194,  b. 

or  where  they  might  lead  the  reader  {k)   1  Roll.  Ab.  373  ;  Alt.  Gen.  v. 

to  further  information  on  the  subject.  Vernon,  1  Vern.  277,  370. 

The  Practical  Register  is  mentioned  (/)  As  to   idiots   and  lunatics,  see 

by  Lord  Hardwicke,  2  Alk.  22,  as  a  chap.  1,  sect.  1. 

book,  though  not  of   authority,  yet  (m)  I  C.  in  Cha.   158  ;    Anon.  3 

better   collected    than  jnost   of   the  Atk.  276.     See  1  Swanst.  292. 

kind.  (n)  On  the  subject  of  informations, 

(g)  As  to  the  authority  of  a  lord  see  Chap.  1,  sect.  3. 

keeper,  see  5  EHz.  c.  18;  and  as  to  (o)  There  are  some  bills  in  early 

that  of    lords  commissioners,  see   1  time  in   the  French    language.     See 

W.  &  M.  c.  21.  Calendars  of  Proceed,  in  Chan,  prin- 

(A)  4  Vin.  Ab.  385  ;  L.  Leg.  Jud.  ted  under  authority  of  Commiss.  on 

JnCh.  44,255,258;  Jud.  Auth.  M.  Public  Records,  1827. 


OF    THE    COURT    OF    CHANCERY.  8 

bill*  and  informations  have  been  always  in  the  En-  fn^Sio^n"  °' 

glish  language  ;  and  a  suit  preferred  in  this  man-  English  bm*  ^ 

ner  in   the   court  of  chancery  has  been  therefore 

commonly  termed   a  suit  by  English  bill,  by  way 

of  distinction  from  the   proceedings  in  suits  within 

the  ordinary  jurisdiction  of  the  court  as  a  court  of 

common  law,  which,  till  the  statute  of  the  4  Geo. 

II.  c.  26,  were  entered  and  enrolled,  more  anciently 

in  the  French  or  Norman  tongue,  and  afterwards 

in  the  Latin,  in  the  same  manner  as  the  pleadings 

in  the  other  courts  of  common  law. 

Every  bill  must  have  for  its  object  one  or  more  Objects  for 

J  ••  which  bills  are 

of  the  grounds  upon  which  the  jurisdiction  of  the  *^'^'^= 
court  is  founded  ;   and  as  that  jurisdiction  some- 
times extends  to  decide  on  the  subject,  and  in  some 
cases  is  only  ancillary  to  the  decision  of  another 
court,  or  a  future  suit,  the  bill  may  either  complain  '^°'^' 
of  some  injury  which  the  person  exhibiting  it  suf- 

•>       •'  *  '^  discovery, 

fers,  and  pray  relief  according  to  the  injury  ;  or, 
without  praying  relief,  may  seek  a  discovery  of 
matter  necessary  to  support  or  defend  another  suit ;  "'J^^'ti""- 
(1)  or,  although  no  actual  injury  is  suffered,  it  may  [9]  9 
complain  of  a  threatened  wrong,  and  stating  a  pro- 
bable ground  of  possible  injury,  may  pray  the  as- 
sistance of  the  court  to  enable  the  plaintiff',  or  per- 
son exhibilinor  the  bill,  to  defend  himself  against 
the  injury  whenever  it  shall  be  attempted  to  be 
committed.     As  the  court  of  chancery  ^as  general 

(1)  It  is  not  allowab'e  in  effect   to  unite  in  one  bill,  a  bill  for  relief,  |^^|}  ^"f,.^®"**^ 
and  a  bill  for  discovery  on  a  matter  which  is  quite  distinct   from  that  distinct  from 
relief,  alt!  oiigh  both  be  connected  witli  the  same  circnmstances.     So 
that  in  a  bill  for  a  receiver,  pendinjf  a  litigation  as  to  probate,  a  plain- 
tiff cannot  have  a  discovery  in  reference  to  the  merits  on  that  litiga- 
tion.     Wood  V.  Hitchings,  3  Beav.  504. 


9  EXTRAORDINARY    JURISDICTION 

[9]  jurisdiction  in  matters  of  equity  not  within^  the 
bounds  or  beyond  the  powers  of  inferior  jurisdictons 

Writ  of  certio-  (^p^^  \i  assumcs  a  control  over  those  jurisdictions, 
by  removing  from  them  suits  which  they  are  incom- 
petent to  determine.  To  effect  this,  it  requires  the 
party  injured  to  institute  a  suit  in  the  court  of  chan- 
cery, the  sole  object  of  which  is  the  removal  of  the 
former  suit  by  means  of  a  writ  called  a  writ  of  cer- 
tiorari ;  and  the  prayer  of  the  bill  used  for  this  pur- 
pose is  confined  to  that  object. 

Answer  on  oath.  'pj^g  j^^j]^  cxccpt  it  merely  prays  the  writ  of  cer- 
tiorari, generally  requires  the  answer  of  the  defen- 

objects  thereof,  ^q^j^^^   qj.   party  complaiucd    of,  upon   oath.      An 

answer  is  thus  required,  in  the  case  of  a  bill  seeking 
the  decree  of  the  court  on  the  subject  of  the  com- 
plaint, with  a  view  to  obtain  an  admission  of  the 
case  made  by  the  bill,  either  in  aid  of  proof,  or  to 
supply  the  want  of  it ;  a  discovery  of  the  points  in 
the  plaintiff's  case  controverted  by  the  defendant, 
and  of  the  grounds  on  which  they  are  controverted  ; 
and  a  discovery  of  the  case  on  which  the  defendant 
relies,  and  of  the  manner  in  w^hich  he  means  to 
support  it.  If  the  bill  seeks  only  the  assistance  of 
the  court  to  protect  the  plaintiff  against  a  future 

10  injury,  the  answer  of  the  defendant  upon  oath  may 
be  required  to  obtain  an  admission  of  the  plaintiff's 
title,  and  a  discovery  of  the  claims  of  the  defendant 
and  of  the  grounds  on  which  those  claims  are  in- 
tended to  be  supported.     When  the  sole  object  of 

[[10]      a  bill  is  a  discovery  of  matter  necessary  to  support 
or  defend  another  suit,  the  oath  of  the  defendant,- 

{p)  The  court  of  equity  in  the  exchequer  chamber,  though  a  particular^ 
IS  not  an  inferior,  jurisdiction. 


OF    THE    COURT    OF    CHANCERY.  '  10 

IS  re.qnired  to  compel  that  discovery.  The  plain-  adbw" '^'•^o'^t 
tiff  may,  if  he  thinks  proper,  dispense  with  this 
ceremony,  by  consenting  to  or  obtaining  an  order 
of  the  court  for  the  purpose  ;  and  this  is  frequently 
done  for  the  convenience  of  parties  where  a  dis- 
covery on  oath  happens  not  to  be  necessary  (1). 

(1)  In  some  of  the  States,  as  New-York  and  Massachusetts,  pro- 
visions by  statute  and  rule  of  court  exist  authorizing  a  waiver  of  an- 
swer on  oath.  2  R.  S.  N.  Y.  175,  5  44.  24  Pick.  Rep.  (Mass.)  rule 
411.  The  statute  has  introduced  a  new  principle  in  pleading.  But 
the  waiver  must  be  of  the  whole  bill.  Complainant  cannot,  after  an- 
swer on  oath,  amend  liis  bill  and  introduce  as  one  of  his  amendments 
such  waiver.  Defendant  having  answered  the  original,  cannot  be  de- 
prived of  the  benefit  under  oath,  of  answering  the  amendments.  In 
such  case  the  complainant,  to  obtain  the  benefit  of  a  waiver,  should 
dismiss  his  bill  and  commence  anew.  Burras  v.  Looker,  4  Paige  Rep. 
227.  No  special  order  of  court  is  heVe  required,  but  the  waiver  is 
stated  in  the  bill,  and  then  the  answer,  if  under  oath,  has  no  more 
•weight  as  evidence  than  the  bill.  The  waiver  may  be  safely  resorted 
to  where  complainant  has  ample  testimony  to  sustain  liis  case,  inde- 
pendently of  the  effect  of  defendant's  oath,  unless  by  such  a  disclosure 
of  his  case  he  defeats  the  equitable  jurisdiction  which  he  invokes. 
Thus  on  a  bill  for  discovery  and  relief,  in  Massachusetts,  where  an  as- 
signee of  an  insolvent  filed  the  bill  to  set  aside  a  mortgage  given  by 
the  insolvent  debtor,  as  a  preference  and  in  contravention  of  the  sta- 
tute law  in  that  state,  and  the  bill  waived  all  claim  for  discovery  and 
answer  on  oath,  the  plaintiff  asking  no  aid  of  defendant  by  way  of 
discovery,  but  depending  on  proofs  in  his  own  power,  it  was  held,  that 
liie  same  proofs  that  would  support  the  bill  would  sustain  a  real  ac- 
tion ;  and  the  plaintiff  having  a  plain,  adequate  and  complete  remedy 
at  law,  the  court  held  that  it  had  no  jurisdiction  and  dismissed  the  bill. 
Thayer  v.  Smith,  9  Metcalf  Rep.  469. 

But  it  is  an  important  provision  for  a  complainant,  who  has  no  con- 
fidence in  the  veracity  of  a  defendant,  and  has  but  one  witness  to  es- 
tablish his  case.  For  it  is  a  rule  in  equity,  that  a  party  is  not  to  be 
charged  upon  any  fact  stated  in  the  bill  against  his  own  denial,  in  his 
answer  under  oath,  of  the  existence  of  such  fact,  if  the  proof  of  the 
fact  is  only  by  one  witness;  upon  the  equitable  principle  that  if  he  is 
put  on  his  oath  by  his  adversary,  credit  shall  be  given  to  his  own  de- 
claration, unless  it  is  contradicted  by  at  least  two  witnesses,  or  by 
written  documents.  But  then  the  answer  must  be  direct,  positive  and 
unequivocal.     Farnam  v.  Brooks,  9  Pick.  Rep.  249,  and  cases  cited. 


10  EXTRAORDINARY    JURISDICTION 

And  where  the  defendant  is  entitled  to  privilege  of 

The  rule  as  laid  down  in  Gould  et  al.  v.  Gould  et  al.,  3.  Story's  Rep. 
540.  516,  is,  that  an  answer  responsive  is  positive  evidence  for  defen- 
dant, and  to  be  taken  as  true,  unless  disproved  by  two  credible  wit- 
nesses, or  by  one  credible  vi^itness,  and  facts  entirely  equivalent  to,  and 
as  corroborative  as  another  witness. 

The  general  rule,  it  seems,  requires  complainant  to  produce  "not 
only  as  much,  but  as  much  again  evidence  to  establish  his  allegation, 
as  if  he  had  not  made  a  witness  of  the  defendant."  Per  Tracy,  sena- 
tor, in  the  court  of  errors,  New-York,  on  reversal  upon  appeal  from 
chancery, .in  Jacksonet  al.  v.  Hart,  11  Wend.  Rep.  354.  But  in  dalle's 
Ex'rsv.  Van  Riemsdyk,9  Crsinch  Rep.  153—164  ;  3  Cond.Rep.  350-1. 
346.  See  also,  2  Cond.  Rep.  293,  n.  Green  v.  Tanner,  8  Metcalf 
Rep.  422.  Where  the  weight  of  an  answer  on  oath,  or  how  far  an- 
swers are  evidence,  and  what  are  the  effects  of  an  answer  on  the  alle- 
gations in  the  bill,  and  what  countervailing  testimony  is  required,  had 
been  fully  discussed,  it  was  held,  that  an  answer,  though  positive  in 
assertion,  may  be  outweighed  by  circumstances,  especially  of  a  fact 
which  in  the  nature  of  things  could  not  be  personally  known  by  de- 
fendant. The  general  rule  is  admitted  by  the  court,  that  two  wit- 
nesses or  one  with  "  probable  circumstances,"  must  be  produced  to 
outweigh  an  answer  asserting  a  fact  responsive  to  tlie  bill.  The  rea- 
son on  which  the  rule  stands  is — the  plaintiff  calls  on  defendant  to 
answer,  admits  it  to  be  evidence.  "  If  testimony,  it  is  equal  to  that  of 
one  witness;  and  as  plaintiff  cannot  prevail  if  the  balance  of  proof 
be  not  in  his  favor,  he  must  have  circumstances  in  addition  to  his 
single  witness  to  turn  the  balance.  But  there  may  be  evidence  from 
circumstances  stronger  than  that  of  a  single  witness."  The  weight  of 
the  answer  must  also  from  the  nature  of  evidence,  depend  in  some  de- 
gree on  the  fact  stated.  If  defendant  assert  a  fact  which  cannot  be 
within  his  own  knowledge,  the  nature  of  the  testimony  cannot  be 
changed  by  the  positiveness  of  his  assertion.     Ibid. 

In  Green  v.  Tanner,  8  Metcalf  Rep.  422.  411,  tiie  answer  was  held 
to  be  evidence  for  defendants,  as  to  fads  within  their  ownknowledge,  and 
to  be  taken  as  true,  unless  contradicted  by  two  witnesses,  or  one 
'•  with  probable  and  corroborative  circumstances."  So  in  Chance  v, 
Teeple,  3  Green  Ch.  Rep.  173,  it  was  held  that  the  principle,  that  two 
witnesses  are  necessary  to  overcome  answer  on  oath,  (as  laid  down  ia 
Neville  Y.  Demeritl,  1  Id.  335.  321,)  is  not  universally  true.  One  with 
corroborative  circumstances  is  enough. 

The  answer  ia  entitled  to  the  full  weight  of  the  testimony  of  one 
credible  and  unimpeached  witness,  because  the  complainant  by  vol- 
untarily appealing  to  the  defendant's  oath,  makes  him  a  competent  wit- 
ness for  hio),  the  complainant,  against  himself  the  defendant,  and  by 


OF    THE    COURT    OF    CHANCERY.  10 

peerage,  or  as  a  lord  of  parliament,  or  is  a  corpo- 
ration aggregate,  the  answer,  in  the  first  case,  is 

calling  him  is  precIudeJ  from  impeaching'  his  testimony.  But  it  has 
such  weight,  so  far  only  as  it  is  "  re-ponsive  to  the  call  in  the  bill  for 
discovery,  or  connecieJ  necessarily  with  the  responsive  matter,  or  ex- 
planatory of  it."  So  held  in  Methodist  Church  v.  Wood,  5  Ohio 
Rep.  176,  174  ;  condens*"  d  from  5  Hammond;  in  which  new  matter 
in  answer  to  a  bill  of  diicovery,  not  so  responsive,  could  not  be  read 
on  trial,  or  used  in  evidence  by  the  party.     lb. 

So  to  tlie  like  eff'Ct  only  is  the  answer  to  bills  for  relief;  new  mat- 
ter or  statement  of  facts  not  inquired  of  in  the  bill,  or  allegations  not 
responsive  are  not  evidence  of  sui  h  facts,  and  will  be  disregarded  by 
the  court  unless  proved  by  defendant.  (See  Neio  Eng.  Bxnkv,  Lewis, 
8  Pick.  Rep.  113.  Neville  v.  Demeritt,  1  Green  Ch.  Kep.  335.  Dickey 
V.  AHen,  Idem.  42,  43.  40.     Brown  v.  Cutler,  8  Ohio  Rep.  143.) 

The  answer  must  also  be  positive  and  unequivocal,  (9  Pick.  249, 
ante,)  direct  and  specific,  (19  Pick.  Rep.  234,  pos/,)  and  its  denial  in- 
volve a  fact  whicli  in  its  nature  may  be  within  defendant's  knowledge, 
(9  Cranch  Kep.  153,  et  s^q.  ante,)  and  in  a  matter  necessary  for  his 
defence,  (11  VVeid.  Rep.  354,  ante.) 

Although  where  the  bill  charged  specific  acts  of  fraud,  the  defendant, 
to  have  the  full  benefit  of  his  answer,  so  far  as  to  require  more  than 
one  wi-tness  to  control  it,  it  mu-t  be  direct  and  specific,  as  to  the  mat- 
ter charged  ;  yet  where  the  answer  denies  fraud  generally,  the  charges 
are  not  to  be  taken  as  true,  and  the  defendant  estopped  to' disprove 
them;  but  the  phintiff  should  except  to  his  answer  for  insufficiency. 
Parkman  v.  Welch  et  al ,  19  I'ick.  Rep.  234.  231. 

In  Massachusetts  where  plaintiff  may  waive  answer  on  oath,  and 
then  it  has  no  more  force  as  evidence  than  the  bill ;  and  where  avail- 
ing him>elf  of  that  rule,  she  so  framed  her  bill  as  to  deprive  the  de- 
fendant of  the  usual  privilege  of  answering  underoath,  and  the  hearing 
came  upon  the  proofs,  the  court  h  Id  that  the  burden  rests  entirely 
upon  the  piaintifi";  and  as  she  d''prived  the  defendant  of  some  of  the 
means  of  defence  usual  in  suits  in  chancery,  it  would  seem  but  rea- 
Bonnble  that  she  should  be  required  strictly  to  sustain  it.  Babcock  v. 
Smith  et  at.,  22  Pick.  Rep.  66.  61.  In  that  case  a  new  question,  natu- 
rally growing  out  of  the  practice  under  the  above  rule  was  made; 
the  depositions  of  two  of  the  defend.mts  were  taken  and  offered  in  evi- 
dence. They  contended  thnt,  according  to  the  principles  and  practice 
in  chancery,  they  were  entitled  to  the  benefit  of  their  statements  under 
oath,  and  that  if  the  plaintiff  m.iy  shut  out  their  sworn  answers,  still 
they  should  iiave  the  benefit  of  them  in  the  form  of  testimony.  But 
whether  tlje  depositions  of  defendants  may  be  adniitted  in  any  case, 
and  if  so  under  what  circumstances  they  may  be  received,  were  ques- 


10  EXTRAORDINARY   JURISDICTION 

required  upon  the  honor  of  the  defendant  {q),  and 
in  the  latter,  under  the  common  seal  (r)  (1). 

(7)    Ord.  in  Cha.  Ed.  Bea.  105,  479  ;  and  8o  it  appears  does  a  Mora- 

261 ;  18  Ves.  470  ;  1   Ves.  470  ;  1  vian,  see  22  Geo.  II.  c.  30.     And  ia- 

Ves.  &  B.  187  ;  1  Jac.  &  W.  526.  fidels  are  permitted  to  swear  accord- 

And  see  Robinson  v.  Lord  Rokehy,  \ng  to  the  forms  of  the  religion  which 

8  Ves.  601,  as  to  Irish  peers.  they  profess,    provided    such    forms 

(r)  It  may  be   observed,  that  al-  constitute  an  appeal  to  the  Supreme 

though  in  ordinary  cases  the  answer  Being;  see  the  well  known  cases  of 

is  required  upon    oath,   other  sane-  Omychund  v.  Barker,  1  Atk.  21  ;  iS. 

tions  are  in  certain  instances  allowed  C.  2  Eq.  Ca.  Abr.  397,  and  Ramkis- 

in  practice:  a  Quaker  puts  in  his  an-  senseat  v.  Barker,  1  Atk.  51  ;  a  Jew 

swer  upon  his  solemn  affirmation  and  makes  oath    upon   the   pentateuch, 

declaration,  see  7  W.  &  M.  c.  34  ;  8  Robeley  v.  Langston,  2  Keble,  314  ; 

Geo.  I.  0.  6.     Ord.  in  Cha.  Ed.  Bea.  Anon.  1  Vern.  263  ;  and  a  Mahome- 

247;    Wood  v.  Story,    1   P.  Wms.  tau  upon  the  Koran,  Stra.  1104. 
781;  Marsh  v.  Robinson,  2  Anstr. 

tions  which  the  court  waived,  not  having  had  time  to  consider,  and 
not  deeming  the  testimony  offered  essential  to  the  decision.     Ibid. 

Although  answer  on  oath  be  waived,  yet  defendant  may  put  it  in  on 
oath.  As  where  he  wishes  to  move  to  dissolve  an  injunction  on  bill 
and  answer  denying  the  equity  of  the  bill,  the  answer  must  be  sworn 
to.  Dougrey  v.  Topping,  4  Paige  Rep.  95.  94.  And  whether  the  bill 
'  is  sworn  to  by  one  or  more  complainants,  the  answer  is  entitled  to  the 
same  credit  as  the  bill,  and  when  it  denies  the  whole  equity,  the  in- 
junction will  be  dissolved,  unless  the  allegations  in  the  bill  be  sus- 
tained by  the  affidavit  of  a  credible  and  disinterested  witness,  as  re- 
quired in  New  York  by  the  37  rule  of  the  late  court  of  chancery. 
Manchester  v.  Day,  6  Paige  Rep.  296,  295. 

See  further  as  to  weight  and  effect  of  sworn  answer  as  between 
immediate  parties  or  co-defendants,  post,  and  next  note  (1). 

(1)  It  is  a  principle  of  equity,  that  the  plaintiff  shall  have  a  full 
discovery  of  material  facts  under  the  sanction  of  an  oath  of  the  party 
interested  ;  and  as  a  corporation  answer  under  seal,  he  may  adopt  the 
course  of  an  examination  of  a  corporator  as  a  party.  This,  as  it  ob- 
viates any  cross-examination,  whereby  he  might  do  away  with  his  an- 
swer as  a  witness,  is  obviously  much  more  beneficial  than  an  exam- 
ination of  him  as  a  witness.  Therefore,  on  a  bill  for  discovery  and 
relief,  any  members  of  a  corporation,  whether  officers,  or  simply  cor- 
porators, and  although  it  is  not  alleged  that  they  have  information  more 
than  any  other  corporator,  may,  so  far  as  relates  to  discovery,  be  made 
party  defendants  and  compelled  to  answer.  Wright  v.  Dame  et  al,  1 
Metcalf  Rep.  (Mass.)  237.  239.  See  as  to  proper  form  of  prayer  in 
the  bill  against  a  corporation  and  its  officers,  1  Edw.  V.  C.  R.  47  n. 


OF    THE    COURT    OF    CHANCERY.  11 

To  the  bill  thus  preferred,  unless  the  sole  object  ^u^^or  °neciJ- 
of  it  is  to  remove  a  cause  from  an  inferior  court  of  '^^ 

[It  is  a  usual  practice  to  make  such  of  the  individual  members  of  a 
corporation  parties  as  are  supposed  to  know  any  thintr  of  the  matters 
inquired  after  in  tlie  bill.  This  is  allowed  by  statute  and  sanctioned- 
by  cases.  2  R.  S.  New-York,  464,  ^  43  ;  lb.  465,  ^  52  ;  Anonymous, 
1  Vern.  117;  Brumley  v.  Westchester  Manuf.  Co.  1  J.  C.  Rep.  366; 
Fulton  Bank  v.  Sharon  Canal  Co.  1  Paige's  C.  R.  218  ;  Dummer  v. 
Cor-p.  of  Chippenham,  14  Ves.  Jr.  245.  Indeed,  it  has  been  said,  a 
•discovery  cannot  be  compelled  in  a  suit  against  a  corporation,  except 
through  the  medium  of  their  agents  and  officers,  by  making  them  par- 
ties defendants.  And  where  tlieir  is  an  injunction,  it  would  be  desira- 
ble that  an  officer  or  other  person  acquainted  with  the  facts  in  the  an- 
swer should  swear  to  it ;  for  the  injunction  cannot  be  dissolved  upon 
liie  general  answer  of  the  corporation,  where  the  seal  alone  is  eworn 
to,  Fulton  Bank  v.  Sharon  Canal  Co.,  supra.] 

When  the  officers  are  made  defendants,  for  the  purpose  of  discovery 
merely,  no  relief  should  be  prayed  against  them.  Mclntijre  v.  Trustees 
of  Union  College  and  E.  Nott,  6  Paige  Rep.  242-3.  239.  If  the  offi- 
cers answering,  are  not  the  same  who  were  in  office  at  the  time  of 
the  transaction  inquired  about,  they  ought  to  go  not  only  to  the  records, 
books  and'files  for  information,  but  to  the  former  officers  if  living,  and 
ascertain,  as  near  as  may  he  the  truth  of  the  matters  about  which  they< 
are  interrogated.  Kiltredge  v:  The  Clarcmont  Bank  et  ah,  1  Wood- 
bury &  Minot  Rep.  247.  244. 

No  decree  can  be  founded  on  their  answer,  either  as  against  them  or 
the  corporation,  but  they  may  be  eworn  as  witnesses.  But  the  infor- 
mation may  be  deemed  of  importance  to  the  complainant  in  the  pro- 
gress of  his  cause,  and  he  has  a  right  to  the  discovery.  The  object 
in  making  the  agent  a  party,  is  for  discovery  to  enable  complainant  to 
understand  his  rights,  and  direct  his  inquiries  by  amendment  of  his 
bill,  or  e.xamination  of  witness.  The  corporation,  therefore,  may  an- 
swer in  tiie  usual  way,  and  the  agent  by  separate  answer.  Vermilyea 
V.  Fulton  Bank,  1  Paige  Rep.  37,  33.  Wright  v.  Dame  et  al.,  1  Met- 
calf,  237.  239,  et  seq. 

In  Haight  v.  The  Proprietors  of  the  Morris  Aqueduct,  4  Wash.  C. 
C.  Rep.  601,  Judge  Washington  decided  that  the  answer  of  a  corpora- 
tion under  seal,  was  sufficient  to  prevent  the  granting,  or  if  granted, 
for  the  dissolution  of  injunction  ;  and  intimated  that  it  would  avail  the 
corporation  as  evidence  at  hearing — same  as  if  by  individual  on  oath. 
-The  contrary  was  decided  in  The  Fulton  Bank  v.  The  New- York  and 
Sharon  Canal  Co.  1  Paige  Rep.  111.  So  in  The  Union  Bank  of 
Georgetown  v.  Geary,  6  Peters'  Rep.  Ill,  the  court  by  Thompson,  J., 

2 


11  EXTRAORDINARY    JURISDICTION 

equity,  it  is  necessary  for  the  person  complained 
of  eitlier  to  make  defence,  or  to  disclaim  all  right 
to  the  matters  in  question  by  the  bill(l).     As  the 

says  :  "  Although  the  reason  of  the  rule  which  requires  two  witnesses 
or  circumstances  to  corroborate  the  testimony  of  one,  to  outweigh  the 
answer,  may  be  founded  in  a  great  measure  upon  the  consideration 
that  the  complainant  makes  the  answer  evidence,  by  calling  for  it,  yet 
this  is  in  reference  to  the  ordinary  practice  of  the  court  requiring  the 
answer  on  oath.  But  the  weight  of  such  answer  is  very  much  les- 
sened, if  not  actually  destroyed,  as  a  matter  of  evidence,  when  unac- 
companied by  an  oath.  And  indeed,  we  are  inclined  to  adopt  it  as  a 
general  rule,  that  an  answer  not  under  oath,  is  to  be  considered  merely 
as  a  denial  of  the  allegations  in  the  bill,  analogous  to  the  general  issue 
at  law,  so  as  to  put  complainant  to  the  proof  of  such  allegations."  In 
the  more  recent  case  of  Lovetl  v.  The  Steam  Saw  Mill  Assoc.  6  Paige 
Rep.  59.  54,  the  chancellor,  after  quoting  the  above  cases,  and  the  opin- 
ion of  the  United  States  Court  by  JusticeThompson,says :  "  This  is  un- 
doubtedly the  correct  view  of  the  matter.  The  answer  of  a  corpora- 
tion without  oath,  where  complainant  does  not  require  it  to  be  sworn 
to,  or  supported  by  the  sworn  answers  of  the  officers  of  the  corpora- 
tion, cannot  be  said  to  answer  the  double  purpose  of  a  pleading  to  put 
the  material  matters  of  the  bill  in  issue,  and  of  an  examination  of  the 
defendant  for  the  purpose  of  obtaining  his  evidence  in  support  of  the 
complainant's  allegations  :  and  it  is  for  the  latter  purpose  alone,  that 
the  complainant  makes  a  witness  of  his  adversary  in  the  cause." 
of'thebiitunTer  (1)  ^y  ^^^  ^Sd  order  of  August,  1841,  "  where  no  account,  pay- 
the  23d  order  of  ment,  Conveyance,  or  other  direct  relief  is  sought  against  a  party  to  a 
suit,  it  shall  not  be  necessary  for  the  plaintiff  to  require  such  party, 
not  being  an  infant,  to  appear  to  and  answer  the  bill.  But  the  plain- 
tiff shall  be  at  liberty  to  serve  such  party,  not  being  an  infant,  with  a 
copy  of  the  bill,  whether  the  same  be  an  original,  or  amended,  or  sup- 
plemental bill,  omitting  the  interrogating  part  thereof;  and  such  bill, 
as  against  such  party,  shall  not  pray  a  subpoena  to  appear  and  answer, 
■  but  shall  pray  that  such  party,  upon  being  served  with  a  copy  of  the 
bill,  may  be  bound  by  all  the  proceedings  in  the  cause.  But  this  order 
is  not  to  prevent  the  plaintiff  from  requiring  a  party  against  whom  no 
account,  payment,  conveyance,  or  other  direct  relief  is  sought,  to  ap- 
pear to  and  answer  the  bill,  or  from  prosecuting  the  suit  against  such 
party  in  the  ordinary  way,  if  he  shall  think  fit."  And  by  the  29th 
order  "  where  no  account,  payment,  conveyance  or  other  relief  is 
sought  against  a  party,  but  the  plaintiff  shall  require  such  party  to  ap- 
pear to  and  answer  the  bill,  the  costs  occasioned  by  the  plaintiff  having 
required  such  party  so  to  appear  and  answer  the  bill,  and  the  costs  of , 


OF    THE    COURT    OF    CHANCERY.  11 

bill  calls  upon  the  defendant  to  answer  the  several  [11] 
charges  contained  in  it,  he  must  do  so,  unless  he  ^TvTeK*'*"' 
can  dispute  the  right  of  the  plaintiff'  to  compel  such 
'an  answer,  either  from  some  impropriety  in  requir- 
ing the  discovery  sought  by  the  bill,  or  from  some 
objection  to  the  proceeding,to  which  the  discovery 
is  proposed  to  be  assistant ;  or  unless  by  disclaim- 
ing all  right  to  the  matters  in  question  by  the  bill 
he  shows  a  further  answer  from  him  to  be  unne- 
cessary (s). 

A  defendant  to  a  bill  may  have  an  interest  to  Formal  answe«. 
support  the  plaintiflf's  case^  or  his  interest  may  not 
be  adverse  to  that  claim  ;  he  may  be  a  mere  trus- 
tee, or  brought  before  the  court  in  some  character 
necessary  to  substantiate  the  suit,  that  there  may 

(s)  In  some  cases  a  defendant  may     tion.      See  Cha^.  II.  sect.  2,  part  1, 
be  compelled  to  answer,  though  he     p.  105. 
has  no  interest  in  the  matters  in  ques- 

all  proceedings  consequential  thereon,  shall  be  paid  by  the  plaintiff", 
unless  the  court  shall  otherwise  direct." 

According  to  the  decision  in  Lloyd  v.  Lloyd,  in  a  creditor's  suit  for 
administering  the  estate  of  a  testator  who  has  devised  his  real  estate, 
subject  to  a  power  of  sale  for  the  payment  of  such  part  of  his  debts  as 
his  personal  estate  might  be  insufficient  to  pay,  the  devisees  may  be 
served  with  a  copy  of  the  bill  under  the  23d  order.  1  Y.  &  C.  Ch. 
C.  181. 

But  according  to  the  decision  in  Barkley  v.  Lord  Reay,  where  a  suit 
is  instituted  for  the  raising  of  a  legacy  by  a  sale  or  mortgage  of  en- 
tailed real  estate  against  the  trustees  thereof,  who  have  the  legal  fee 
and  full  power  to  sell  or  mortgage  and  give  receipts,  it  is  not  sufficient 
to  serve  the  equitable  tenant  in  tail  with  a  copy  of  the  bill.     2  Hare,  306. 

The  23d  order  does  not  apply  to  the  Attorney  General.  Christopher 
V.  Cleghorn,  8  Beav.  314.  As  to  other  persons  not  within  this  order, 
see  JMarke  v.  Turner,  7  Jur.  1102. 

The  prayer  that  a  party  who  is  not  required  to  appear  and  answer 
may  be  bound  by  all  the  proceedings  in  tiie  cause,  ought  to  be  inserted 
in  that  part  of  the  bill  in  which  process  is  prayed  against  the  other  de- 
fendants.    Gibson  V.  Ilaynes,  6  Jur,  203,  L.  C. 


11  EXTRAORDINARY    JURISDICTION 


12 


[12] 


be  proper  parties  to  it(l).  In  such  cases,  his  an- 
swer may  often  be  mere  matter  of  form  (2),  sub- 
mitting the  subject  of  the  suit  to  the  judgment  of 
the  court ;  and,  if  any  act  should  be  required  to  be  * 
done  by  him,  desiring  only  to  be  indemnified  by 
the  decree  of  the  court. 
Grounds  of  de-      The  ofrounds  on  which  defence  may  be  rnade 

fence.  ~  •' 

to  a  bill  either  by  answer,  or  by  disputing  the  right 
of  the  plaintiff  to  compel  the  answer  which  the 
bill  requires,  are  various.  The  subject  of  the  suit 
may  not  be  within  the  jurisdiction  of  a  court  of 
equity  :  or  some  other  court  of  equity  may  have 
the  proper  jurisdiction  :  the  plaintiff  may  not  be 
entitled  to  sue  by  reason  of  some  personal  disa- 
bility: if  he  has  no  such  disability  he  may  not  be 
the  person  he  pretends  to  be  :  he  may  have  no  in- 
terest in  the  subject :  or  if  he  has  an  interest,  he 
may  have  no  right  to  call  upon  the  defendant  con- 
cerning it :  the  defendant  may  not  be  the  person  he 
is  alleged  to  be  by  the  bill :  or  he  may  not  have 
that  interest  in  the  subject  which  can  make  him 
liable  to  the  claims  of  the  plaintiff:  and  finally,  if 
the  matter  is  such  as  a  court  of  equity  ought  to  in- 
terfere in,  and  no  other  court  of  equity  has  the  pro- 
per jurisdiction,  if  the  plaintift'  is  under  no  per- 
sonal disability,  if  he  is  the  person  he  pretends  to 
he,  and  has  a  claim  of  interest  in  the  subject,  and 
a  right  to  call  upon  the  defendant  concerning  it :  if  . 
the  defendant  is  the  person  he  is  alleged  to  be, 
and  also  claims  an  interest  in  the  subject  which 
may  make  him  liable  to  the  demands  of  the  plain- 

(1)  [Bailey  v.  Inglee,  2  Paige  Rep.  278.] 

(2)  See  an/e  p.  11,  n.  (1). 


OF    THE    COURT    OF    CHANCERY. 


13 


tiff,  still  the  plaintiff  may  not  be  entitled,  in  the 
whole  or  in  part,  to  the  relief  or  assistance  he 
prays  :  or  if  he  is  so  entitled,  the  defendant  may 
also  have  rights  in  the  subject  which  may  require 
the  attention  of  the  court,  and  call  for  its  inter- 
ference to  adjust  the  rights  of  all  parties  ;  the  ef- 
fecting complete  justice,  and  finally  determining, 
as  far  as  possible,  all  questions  concerning  the 
subject,  being  the  constant  aim  of  courts  of  equity. 
Some  of  these  grounds  may  extend  only  to  entitle 
the  defendant  to  dispute  the  plaintiff's  claim  to  the 
relief  prayed  by  the  bill,  and  may  not  be  sufficient 
to  protect  him  from  making  the  discovery  sought  ^^ 

by  it ;  and  where  there  is  no  ground  for  disputing 
the  right  of  the  plaintiff  to  the  relief  prayed,  or  if 
no  relief  is  prayed,  yet  if  there  is  any  impropriety 
in  requiring  the  discoveiy  sought  by  the  bill,  or  if  the 
discovery  can  answer  no  purpose,  the  impropriety  ^ 

or  immaterial  it}''  of  the  discovery  may  protect  the 
defendant  from  making  it. 

The  defence  which  may  be  made  on  these  seve-  ^,f  oTmatteMt 
ral  grounds  may  be  founded  on  matter  apparent  on  a'^defeit  the  °e°n^ 
the  bill,  or  on  a  defect  either  in  its  frame  or  in  the 
case  made  by  it;  and  may  on  the  foundation  of  the 
bill  itself  demand  the  judgment  of  the  court  whether 
the  defendant  shall  be  compelled  to  make  any  an- 
swer to  the  bill,  and  consequently  whether  the  suit 
shall  proceed  ;  or  it  mav  be  founded  on  matter  not  eawhofiyoTlfBr' 

,         1    ...     ,       "  1   •  1  1       .  1    tially  on  ninttcr 

apparent  on  the  bill,  but  stated  m  the  detence,  and  "'V.-l',''  '^'^^ 

*  *■  '  'of  the  bjU. 

may  on  the  matter  so  offered  demand  the  judgment 
of  the  court,  whether  the  defendant  shall  be  com- 
pelled to  make  any  other  answer  to  the  bill,  and 
consequently  whether  the  suit  shall  proceed,  except 
to  try  the  truth  of  the  matter  so  offered  ;  or  it  may 


14 


EXTRAORDINARY    JURISDICTION 


15 

Plea, 


[14] 


be  founded  on  matter  in  the  bill,  or  on  further  mat- 
ter offered,  or  on  both,  and  submit  to  the  judgment 
of  the  court  on  the  whole  case  made  on  both  sides ; 
and  it  may  be  more  complex,  and  apply  several 
defences  differently  founded  to  distinct  parts  of  the 
bill. 

The  form  of  making  defence  varies  according  to 
the  foundation  on  vv^hich  it  is  made,  and  the  extent 
in  which*  it  submits  to  the  judgment  of  the  court. 
If  it  rests  on  the  bill,  and  On  the  foundation  of  mat- 
ter there  apparent  demands  the  judgment  of  the 
court  whether  the  suit  shall  proceed  at  all,  it  is 
termed  a  demurrer  ;  if  on  the  foundation  of  new 
matter  offered,  it  demands  the  judgment  of  the 
court  whether  the  defendant  shall  be  compelled  to 
answer  further,  it  assumes  a  different  form,  and  is 
termed  a  plea;  if  it  submits  to  answer  generally 
the  charges  in  the  bill,  demanding  the  judgment 
of  the  court  on  the  whole  case  made  on  both  sides, 
it  is  offered  in  a  shape  still  different,  and  is  simply 
called  an  answer.  If  the  defendant  disclaims  all 
'interest  in  the  matters  in  question  by  the  bill,  his 
answer  to  the  complaint  made  is  again  varied  in 
Several  forms  of  foriTi,  aud  is  tcrmcd  a  disclaimer.     And  all  these 

defence  to  seve- 
ral^ parts  of  the  several  forms  of  defence,  and  disclaimer,  or  any  of 

them,  may  be  used  together,  if  applying  to  separate 
and  distinct  parts  of  the  bill. 

A  demurrer,  being  founded  on  the  bill  itself,  ne- 
cessarily admits  the  truth  of  the  facts  contained  in 
the  bill,  or  in  the  part  of  the  bill  to  which  it  extends; 
and  therefore,  as  no  fact  can  be  in  question  between 
the  parties,  the  court  may  immediately  proceed  to 
pronounce  its  definitive  judgment  on  the  demurrer, 
which  if  favourable  to  the  defendant,  puts  an  end  to 


Answer. 


Disclaimer. 


Proceedings    on 
a  denhirrer. 


OF    THE    COURT    OF    CHANCERY.  15 

SO  much  of  the  suit  as  the  demnrrer  extends  to.     A 
demurrer  (1),  if  allowed,  consequently  prevents  any  p^^^^^^^^^^  ^ 
further  proceeding  (t).     A  plea  is  also  intended  to  p'^^ 
prevent  further  proceeding  at  large,  by  resting  on  16 

some  point  founded  on  matter  stated  in  the  plea; 
and  as  it  rests  on  that  point  merely,  it  admits,  for  the 
pui-poses  of  the  plea,  the  truth  of  the  facts  contained       [15] 
in  the  bill,  so  far  as  they  are  not  controverted  by 
facts  stated  in  the  plea.     Upon  the  sufficiency  of 
this  defence   the  court  will  also    give   immediate 
judgment,  supposing  the  facts  stated  in  it  to  be  true; 
but  the  judgment,  if  favourable  to  the  defendant,  is 
not  definitive ;  for  the  truth  of  the  plea  may  be 
denied  by  the  plaintiff  by  a  replication,  and  the  par- 
ties may  then  proceed  to  examine  witnesses,  the 
one  to  prove  and  the  other  to  disprove  the  facts 
stated  in  the  plea.     The  replication  in  this  case 
concludes  the  pleadings  (u)  ;  though  if  the  truth  of 
the  plea  shall  not  be  supported,  further  proceedings 
may  be  had,  which  will  be  noticed  in  a  subsequent 
page  (x).     An   answer  generally  controverts    the  an°^^8w?r^*  °° 
facts  stated  in  the  bill,  or  some  of  them,  and  states 
other  facts  to  show  the  riofhts  of  the  defendant  in 

(t)   An  amendment  of  a  bill  lias  moved   by   amendment,  to   make   a 

been  permitted  by  a  court  of  equity  special  order,  adapted  to  the  circum- 

after  a  demurrer  to  the  whqle  bill  bad  stances  of  the  case.     See   Chap.  H. 

been  allowed ;  but  this  seems  not  to  sect.   2,  part  1.  [p.  106]. 

have  been  strictly  regular  ;  2  P.  Wms.  (u)  See  Chap.  HI.  [p.  321]. 

300  (2) ;  and  it  seems  most  proper,  if  (x)  See   Chap.  II.  sect.  2,  part  2. 

the  ground    of  demurrer  may  be  re-  (p.  218]. 

(1)  That  is,  a  demurrer  to  the  whole  bill.  If  a  partial  demurrer  is 
;allowed,  the  bill  is  still  in  court.  And  on  allowing  a  demurrer  for 
want  of  parties,  the  court  generally  gives  leave  to  amend  the  bill.  See 
A  Headlam's  Daniell's  Ch.  Pr.  552—555. 

(2)  [See  note  to  tJiis  case  in  Cox's  edition  of  P.  Wms.] 


16  EXTRAORDINARY    JURISDICTION 

the  subject  of  the  suit;  but  sometimes  it  admits 
th§  truth  of  the  case  made  by  the  bill,  and,  either 
with  or  without  stating  additional  facts,  submits  the 
question  arising  upon  the  case  thus  made  to  the 
judgment  of  the  court.  If  an  answer  admits  the 
facts  stated  in  the  bill,  or  such  as  are  material  to 
the  plaintiff's  case,  and  states  no  new  facts,  or 
such  only  as  the  plaintiff  is  willing  to  admit,  no  fur- 

17  ther  pleading  is  necessary  ;  the  answer  is  considered 
as  true,  and  the  court  will  decide  upon  it.  But  if 
the  answer  does  not  admit  all  the  facts  in  the  bill 
material  to  the  plaintiff's  case,  or  states  any  fact 
which  the  plaintiff  is  not  disposed  to  admit,  the  truth 
of  the  answer,  or  of  any  part  of  it,  may  be  denied ,  and 

[16]  the  sufficiency  of  the  bill  to  ground  the  plaintiff's 
title  to  the  relief  he  prays  may  be  asserted,  by  a 
replication,  which  in  this  case  also  concludes  the 
pleadings  according  to  the  present  (t/)  practice 
New  defence,  of  the  couit.  If  a  dcmurrcr  or  plea  is  overruled 
upon  argument  the  defendant  must  make  a  new 
defence  (1).  This  he  cannot  do  by  a  second 
demurrer  of  the  same  extent  after  one  demurrer 
has  been  overruled ;  for  altliough  by  a  standing 
order  of  the  court  a  cause  of  demurrer  must  be 
set  forth  in  the  pleading,  yet  if  that  is  overruled  any 
other  cause  appearing  on  the  bill  may  be  offered  on 
argument  of  the  demurrer,  and,  if  valid,  will  be  al- 
lowed ;  the  rule  of  the  court  affecting  only  the  costs. 
But  after  a  demuiTcr  has  been  overruled  a  new  de- 
fence may  be  made  by  a  demurrer  less  extended, 

(y)  See  Chap.  III.  [p.  321.]    • 

(1)   [See  Goodrich  V.  Pendleton,  4  Johns.  Ch.  Rep.  651  ;  Murray,  v. 
Coster,  4  Cow.  Rep.  617  ;  Townsendv.  Toicnsend,  2  Paige  Rep.  413.]. 


OF    THE    COURT    OF    CHANCERY.  17 

or  by  plea,  or  answer  ;  and  after  a  plea  has  been 
overuled,  defence  may  be  made  by  demurrer,  by  a 
new  plea,  or  by  an  answer  :  and  the  proceedings 
upon  the  new  defence  will  be  the  same  as  if  it  had 
been  orifrinally  made  (z).     A  disclaimer,  neither  Proceedings  in 

~  •'  ^    ■'  .  _  the  case  of  a  dis- 

assertirtg  any  fact,  or  denying  any  right  sought  by  '^laimer. 
the  bill,  admits  of  no  further  pleading  (a).     If  the  rSSor. 
sole  object  of  a -suit  is  to  obtain  a  discovery,  there  ribui.'""''^"""' 
can  be  no  proceeding  beyond  an  answer  by  which  ■'-" 

the  discovery  is  obtained.  A  suit  which  only  seeks 
to  remove  a  cause  from  an  inferior  court  of  equity 
does  not  require  any  defence,  and  consequently 
there  can  be  no  pleading  beyond  the  bill. 

Suits  thus  instituted  are  sometimes  imperfect  in  [17] 
their  frame,  or  become  so  by  accident  before  their 
end  has  been  obtained ;  and  the  interests  in  the  pro- 
perty in  litigation  maybe  changed  pending  the  suit  puitsthatarenot 
in  various  ways.  To  supply  the  defects  arising  °^'^""^"^^'- 
from  any  such  circumstances,  new  suits  may  be- 
come necessary,  to  add  to,  or  continue,  or  obtain 
the  benefit  of,  the  original  suit.  A  litigation  com- 
menced by  one  party  sometimes  renders  a  litigation 
by  another  party  necessary,  to  operate  as  a  defence, 
or  to  obtain  a  full  decision  on  the  rights  of  all  par- 
ties. Where  the  court  has  given  judgment  on  a 
suit,  it  will  in  some  cases  permit  that  judgment  to 
be  controverted,  suspended, or  avoided  by  a  second 
suit ;  and  sometimes  a  second  suit  becomes  neces- 
sary to  carry  into  execution  a  judgment  of  the  court. 
Suits  instituted  tor  any  of  these  purposes  are  also 
commenced  by  bill  ;  and  hence  arises  a  variety  of 

(z)  See  Cliap.  II.  sect.  2,  part  1.         (a)  See  Chap.  II.  sect.  2,  part  3. 
[106].  [306]. 


[18] 


18  EXTRAORDINARY    JURISDICTION 

distinctions  of  the  kinds  of  bills  necessary  to  an- 
swer the  several  purposes  of  instituting  an  original 
suit,  of  adding  to,  continuing,  or  obtaining,  the  be- 
nefit of  a  suit  thus  instituted,  of  instituting  a  cross- 
suit,  and  of  impugning  the  judgment  of  the  court 
on  a  suit  brought  to  a  decision,  or  of  carrying  a 
judgment  into  execution  ;  and  on  all  the  different 
kinds  of  bills  there  may  be  the  same  pleadings,  as 
on  a  bill  used  for  instituting  an  original  suit. 
X9  It  frequently  happens  that,  pending  a  suit,  the 

pi?adiS^°*  °^  parties  discover  some  error  or  defect  in  some  of  the 
pleadings  ;  and  if  this  can  be  rectified  by  amend- 
ment of  the  pleading,  the  court  will  in  many  cases 
permit  it.  This  indulgence  is  most  extensive  in 
the  case  of  bills ;  which  being  often  framed  upon 
an  inaourate  state  of  the  case,  it  was  formerly  the 
practice  to  supply  their  deficiences,  and  avoid  the 
consequences  of  errors,  by  special  replications. 
But  this  tending  to  long  and  intricate  pleading,  the 
special  replication  requiring  a  rejoinder,  in  which 
the  defendant  might  in  like  manner  supply  defects 
in  his  answer,  and  to  which  the  plaintiff  might  sur- 
rejoin, the  special  replication  is  now  disused  for 
this  purpose,  and  the  court  will,  in  general,  permit 
a  plaintiff  to  rectify  any  error,  or  supply  any  defect 
in  his  bill,  either  by  amendment,  or  by  a  supple- 
mental bill ;  and  will  also  permit  in  some  cases, 
a  defendant  to  rectify  an  error  or  supply  a  defect 
in  his  answer,  either  by  amendment,  or  by  a  further 
answer.  (1) 


(1)  Dupote  V.  Massey,  Coxe's  Dig.  147.     The  reason  why  the  prac- 
tice of  special  replications,  and  the  accumulation  of  specialties  upon 


20 


OF    THE    COURT    OF    CHANCERY.  19 

Summary  jurisdiction  has  been  given  by  autho-  diS^JL^peti; 
rity  of  parliament  to  courts  of  equity  in  certain 
€ases  arising  incidentally  from  the  provisions  of  acts 
of  parliament,  both  public  and  private,  without  re- 
quiring the  ordinary  proceeding  by  bill  or  informa- 
tion and  substituting  a  simple  petition  to  the  court; 
the  assistance  of  the  .court  being  required  only  to 
provide  for  the  due  execution  of  the  provisions  of 
such  acts. 

But  by  an  act  of  the  52  of  Geo.  III.  c.  101,  a  m  the  caso  ot 

....  .    .  charities. 

summary  jurisdiction,  on  petition  only,  has  been 
ffiven  in  the  case  of  abuses  of  trusts  created  for 
charitable  purposes,  which  were  the  subjects  of  in- 
formation by  the  king's  attorney-general,  to  which  [19] 
the  persons  of  whom  complaint  was  made  might 
make  defence,  according  to  the  nature  of  the  case 
stated  in  the  information,  by  demurrer,  plea  or  an- 
swer, -so  that  the  court  might  have  before  it  the 
whole  case  on  which  its  judgment  might  be  required, 
and  to  which  evidence  to  be  produced  in  support  of 
or  in  answier  to  the  complaint  made  might  be  pro- 
perly applied. 


them,  is  not  allowed  in  equity,  may  be  this  :  the  great  object  of  special 
pleading  at  common  law  is  to  keep  the  law  and  fact  distinct,  they 
being  to  be  tried  by  separate  tribunals  ;  but,  in  equity,  the  whole  ques- 
tion comes  before  the  court  for  its  decision  both  on  the  pleadings  and 
the  proofs.     Lube,  371. 

Special  replications,  however,  may  be  filed  by  leave  of  court  on 
cause  shown,  but  not  otherwise  :  by  the  practice  of  some  of  the 
States,  as  in  New  York  and  Massachusetts,  (24  Pick.  413,  Rule  14.) 
In  the  United  States  courts,  the  act  regulating  processes  therein,  hav- 
ing in  reference  to  proceedings  in  equity,  been  generally  understood 
to  adopt  the  principles,  rules  and  usages  of  the  court  of  ciiancery  of 
England,  arite,  p.  1,  n.  (1),  complainants  cannot  make  a  new  case  by 
their  replication,  but  should  amend  their  bill.  {Valtier  v.  Hinde,! 
Peters,  274.) 


20  EXTRAORDINARY    JURISDICTION,  &C. 

The  loose  mode  of  proceeding  authorized  by  this 
act  was  probably  intended  to  save  expense  in  in- 
vestigating abuses  of  charities :  but  in  practice  it 
unavoidably  led  to  great  inconvenience  ;  the  court 
not  having  before  it  any  distinct  record  to  which  its 
judgment  might  be  properly  applied,  and  especially 
with  respect  to  those  against  whom  complaint 
might  be  made,  or  those  against  whom  no  such 
complaint  could  be  made,  but  whose  interests  might 
be  effected  by  the  judgment  of  the  court.  This 
inconvenience  became  apparent  in  a  case  which 
was  made  the  subject  of  appeal  to  the  House 
of  Lords,  who  filially  determined,  that  a  jurisdic- 
tion, so  summary,  and  in  which  the  proceedings 
were  so  loose,  ought,  in  just  construction  of  the  act, 
to  be  confined  to  the  simple  case  of  abuse  of  a  clear 
trust,  not  involving  any  question  beyond  the  ques- 
tion of  such  abuse,  and  particularly  not  involving 

^^  the  interests  of  persons  to  whom  such  abuse  of  trust 

Order  in  which  could  iiot  be  iuiputed  (h)  (1). 

pleadings  are  —  .  .         .  ,  ^    ,  ,       , 

considered.  In  au  mquuy  mto  the  nature  ot  the  several  plea- 

dings thus  used,  it  seems  most  convenient  to  con- 
r2Q-|  sider  them  in  the  order  in  which  they,  have  their 
effect,  and  consequently  to  treat,  1,  of  bills  ;  2,  of 
the  defence  to  bills,  and  therein  of  demurrers,  pleas, 
answers  and  disclaimers  ;  3,  of  replications  ;  and  4^ 
to  notice  matters  incidental  to  pleadings  in  general, 
and  particularly  the  cases  in  w^iich  amendments  of 
inaccurate  or  erroneous  pleadings  are  permitted. 

(6)  Corp.  o( Ladlow  V.  Greenhouse,  D.  Proc.  Feb.  1827. 
(1)  On  this  subject,  see  2  Headlam's  Daniell's  Ch.  Pr.  1113,  et  seq. 


22 


CHAPTER  THE  FIRST.  [2i] 

OF   BILLS. 


Section  I. 

Sy  whom,  and  against  ichom,  a  Bill  may  he  ex- 
hibited. 

In  treatino^  of  bills,  it  will  be  proper  to  consider,  order  in  whkh 

^  ^    ,  ^  _      bills  are  treated 

I.  The  several  persons  who  are  capable  of  exhi-  °^- 
biting  a  bill,  by  themselves,  or  under  the  protection, 
or  in  the  name  of  others  ;  and  against  whom  a  bill 
may  be  exhibited  :  II.  The  several  kinds  and  dis- 
tmctions  of  bills:  and  III.  The  frame  and  end  of 
the  several  kinds  of  bills.  An  information  ditfer- 
ing  from  a  bill  in  a  little  more  than  in  name  and 
form,  its  nature  will  be  principally  considered  under 
the  general  head  of  bills,  and  its  peculiarities  will 
be  afterwards  noticed. 

It  has  been  already  observed  that  suits  on  behalf  |;;|;°™'„*^°^  ^^ 
of  the  crown  and  of  those  who  partake  of  its  prero-  rai! 
gative   or  claim   its  peculiar  protection,  are  insti- 
tuted by  officers  to  whom  that  duty  is  attributed  («). 
These  are,  in  the  case  of  the  crown,  and  of  those 
whose  rights  are  objects  of  its  particular  attention, 

(a)  See  above,  p.  7. 


solicitor-cene- 


23  BY    WHOM    A    BILL  [ChaP.    I. 

[22]  the  king's  attorney  (h)  or  solicitor-general  (c);  smd 
as  these  officers  act  merely  officially,  the  bill  they 
exhibit  is  by  way,  not  of  petition  or  complaint,  but 
of  information  to  the  court  of  the  eights  which  the 
crown  claims  on  behalf  of  itself  or  others,  and  of 
the  invasion  or  detention  of  those  rights  for  which  the 
at  the  relation  of  gyit  is  institutcd.     If  tlic  suit  docs  not  immediately 

another  person.  •' 

concern  the  rights  of  the  crown,  its  officers  depend 
on  the  relation  of  some  person,  whose  name  is  in- 
serted in  the  information,  and  who  is  termed  the 
relator ;  and  as  the  suit  is  carried  on  under  his  di- 
rection, he  is  considered  as  answerable  to  the  court 
and  to  the  parties  for  the  propriety  of  the  suit  and 
Information  and  the  couduct  of  it  (cl).  It  somctimcs  happens  that 
this  person  has  an  interest  in  the  matter  in  dispute, 

24  [23]   of  the  injury  to  which  interest  he  has  a  right  to 

complain.     In  this  case  his  personal  complaint  be- 
ing joined  to,  and  incorporated  with,  the  informa- 

(6)  See   1  Swanst.  290,  291,  294,  chamber,  in    the    British    Museum, 

and  Rex  v.  Austen,  8  Pri.  Exch.  R.  Harl.  MSS.  vol.  i.  No.  1226,  menti- 

142.     And  the  crown  may  be  repre-  oned  in  4  Bl.  Com.  267. 

seBted  as  plaintifF  by  the   attorney-  (J)  1  Russ.  R.  236.     It  appears,  as 

general,  and  as  defendant  by  the  so-  intimated  in  the  text,  that  it  is  not  ab- 

licitor-general,  in  the  same  suit,  where  solutely   necessary,  even   in  the   In^ 

there  are  conflicting  claims  between  stances  the^e  alluded  to,  that  a  relator 

the  king  and  persons  partaking  of  his  should  be  named,  2  Swanst.  520  ;  4 

prerogative,  or  under  his  peculiar  pro-  Dow.  P.  C.  8,  although  the   practice 

tectioa.     See  Ait.  Gen.  v.  Mayor  of  of  naming  one  seems  to  have  beeu 

Bristol,  3  Madd.  319;  S.  C.  2  Jac.  universally  adopted,  1  Ves.  J.  247;  4 

&  W.  294;  Att.  Gen.  v.  Vivian,  1  Dow.  P.  C.  8 ;  1  Sm.  &  Stu.  396, 

Russ.  R.  226.  But  it  may  be  remarked  that  the  le' 

(c)  See,  as- to  the  solicitor-general,  gislature,  in  certain  special  cases  in 

Wilkes's   Case,    4  Burr.  2527  ;    Sol.  which  the  right  may  be  doubtful,  has 

Gen.  V.  Z>or?/,  6  May,  1735,  anil  iSoZ.  empowered  the  attorney-general   to 

Gen.  V.  Warden  and  Fellowship  of  institute  a  suit,  by  information,  with- 

iSutton    Coldfield,   Mich.    1763,   in  out  requiring  that  a  relator  should  be 

Chancery.     This  subject  is  partlcu-  "named.     See  59  Geo.  HI.  c.  91,  and 

larly  considered  in  part  iii.  sect.  4,  of  see  1  Sim.  &-  Stu.  396. 
a   manuscript  treatise   on  the  Star- 


S.  I.] 


MAY    BE    EXHIBITED. 


24 


thout  a  rel^ 
tor. 


tion  given  to  the  court  by  the  officer  of  the  crown, 
they  form  together  an  information  and  bill,  and  are  J^fo""«t*o°" 
so  termed  (e)  (1).  But  if  the  suit  immediately 
concerns  thfe  rights  of  the  crown,  the  information  is 
generally  exhibited  without  a  relator  (/)  ;  and 
where  a  relator  has  been  named,  it  has  been  done 
through  the  tenderness  of  the  officers  of  the  crown 
towards  the  defendant,  that  the  court  might  award 
costs  against  the  relator,  if  the  suit  should  appear 
to  have  been  improperly  instituted,  or  in  any  stage 
of  it  improperly  conducted  {g).  The  queen-con- 
sort, partaking  of  the  prerogative  of  the  crown, 
may  also  inform  by  her  attorney  (k). 

Suits  on  behalf  of  bodies  pohtic  and  corporate, 


[24]     25 


(e)  See  as  iiiBtances,  Alt.  Gen.  v. 
Oglender,  1  Ve^.  J.  247  :  Att.  Gen.  v. 
Brown,  1  Swanst.  265  ;  Alt.  Gen.  v. 
Master  and  Fell,  of  Caih.  Hall,  1 
Jac.  R.  381  ;  Att.  Gev.  y.  Heelis,  2 
Sim.  &  Stu.  67,  and  Att.  Gen.  v. 
Vivian,  1  Russ.  R.  226.  If  the  rela- 
tor should  not  be  entitled  to  the  equi- 
table relief  which  he  seeks  for  himself, 
the  suit  may  nevertheless  be  supported 
on  behalf  of  the  crown,  1  Swanst.  305; 
and  upon  an  information  and  bill,  the 
bill  alone  may  be  dismissed,  see  Att. 
Gen.  V.  Vivian,  1  Russ.  R.  226.  And 
see  Att.  Gen.  v.  Moses,  2  Madd.  294, 
a  case  of  information  and  bill,  in  which 
the  king  having  had  no  interest,  the 
attorney-general  was  an  unnecessary 
party. 

(/)  Att.  Gen.  v.  Vernon,  1  Vern. 


277,  370  ;  Att.  Gen.  v.  Crofts,  4  Bro- 
P.  C.  136,  Tomi.  Ed. 

(g)  The  propriety  of  naming  a  re- 
lator for  this  purpose,  and  the  oppres- 
ion  ari.sing  from  a  contrary  practice 
were  particularly  n<^iced  by  Baron 
Perrot,  in  a  cause  ifflhe  exchequer. 
Att.  Gen.  v.  For.  In  that  cause  no 
relator  was  named :  and  though  the 
defendants  finally  prevailed,  they 
were  put  to  an -expense  almost  5qual 
to  the  value  of  the  property  in  dispute. 
See  2  Swaust.  530;  1  Sim.  &,  Stu. 
397  ;  1  Russ.  R.  236.  If  the  relator 
should  die,  this  court  would  appoint 
another.  Att.  Gen.  v.  Powel,  Dick. 
355. 

(A)  10  Edw.  III.  179;  Collins,  131; 
2  RgI.  Ab.  213. 


(1)  An  iiiformalion  and  bill  is  improper,  where  tlie  persons  named  information  and 

as  plaintiffs  as  well  as  relators  have  no  individual  Interest;  as  where  ^j".  ^I?'^'"?  '^^ 

.     -  1  1  .11  •     r.1     T  I  *•  plnintins    have 

an  intormation  and  bill  is  filed  by  three  of  the  court  of  assistants  of  a  "o  individual in- 

coinpany  in  respect  of  a  chanty,  and   by  two  of  the  obj  'cts  of  the  ^"^^^ ' 


charity.     Allorney  Gen.  v.  East  India  Company,  1 1  Sim.  380. 


25 


BY  WHOM  A  BILL 


[Chap.  I. 


TunTTh'em""  ^"^  of  pcrsons  who  do  not  partake  of  the  preroga- 
aeivea  alone.  ^|^^  ofthc  crowii,  aiid  havc  HO  claini  to  its  particular 
protection,  are  instituted  by  themselves,  either  alone 
or  under  the  protection  of  others  (1).  Bodies  po- 
litic £uid  corporate  («),  and  all  persons  of  full  age, 
not  being  feme-covert,  idiot  or  lunatic,  may  by  them- 
selves alone  exhibit  a  bill.  A  feme-covert,  if  her 
husband  is  banished  (k)  or  has  abjured  the  realm  (Z), 
may  do  so  likewise  ;  for  she  then  may  act  in  all 
respects  as  a  feme-sole  (m).  Those,  therefore, 
who  are  incapable  of  exhibiting  a  bill  by  themselves 
alone,  are,  1,  infants ;  2,  married  women,  except 
the  wife  of  an  exile,  or  of  one  who  has  abjured  the 
realm;  3,  idiots  and  lunatics  (??)  (2). 


Persons  who 
cnnnot  sue  Ijjr 
themselves 
alone. 


(7)  3  Swanst.  138.  As  examples 
of  suits  by  such  bodies,  see  the  Cha- 
ritable Corporation  V.  Sutton,  2  Atk. 
406 ;  Universities  of  Oxford  and 
Cambridge  v.  Riehardson,  6  Ves. 
689;  Mayor,  ^-Ci  of  London  v.  Levy, 
8  Ves.  398  ;  City  of  London  v.  Mit- 
ford,  14  Ves.  41  ;  Bank  of  England 
V.  Lunn,  15  Ves.  569  ;  Mayor  of  Col- 
chester V.  Laiotoit,  1  Ves:  &  B.  226 ; 
Dean  and  Chapter  of  Christ  church 
V.  Simonds,  2  Meriv.  467;  East 
India  Comp.  v.  Keighley,  4  Madd. 
10;  Vauxhall  Bridge  Company  v. 
Earl  Spencer,  1  Jac.  R.  64;  Presi- 
dent, cj-c,  of  Magdalen  College  v. 
Sibthorp,  1  Russ.  R.  154. 

(A)  1  Hen.  IV.  1 ;  Sybell  Belknap's 


case,  2  Hen.  IV.  7,  a ;  11  Hen.  IV- 

1,  a.  b. 

(l)  Thomas  of  Weyland's  case,  19 
Edw.  I. ;  1  Inst.  133,  a. 

(?«)  See  Newsome  v.  Bowyer,  3  P- 
Wnis.  37. 

(«)  It  may  seem,  tliat  the  disabi- 
lities arising  from  outlawry,  excom- 
munication, conviction  of  popish  re- 
cusancy, attainder,  and  alienage,  and 
those  which  formerly  arose  from  vil- 
lenage  and  profession,  ought  to  bo 
here  noticed.  Such  of  them  as  sub- 
sist do  not,  and  the  others  did  not, 
absolutely  disable  the  person  suffering 
under  them  from  exhibiting  a  bill- 
Outlawry,  excommunication  (3)  and 
conviction  of    popish   recusancy  (4) 


(1)  A  corporation  can  only  sue  in  the  name  and  style  given  to  it. 
Porter  v.  Nediervis,  4  Randolph's  (Virginia)  Rep.  359.  As  to  suits 
by  foreign  state,  see  [31]  n.  2, post. 

(2)  See  p.  [30,]  n.  (1). 

(3)  This  disability  is  removed  by  the  statute  53  Geo.  III.  c.  127,  s  3. 

(4)  This  disability  is  removed  by  the  statute  31  Geo.  III.  c.  32, 


S.  I.]  MAY  BE  EXHIBITED.  26 

1.  An  infant  is  incapable  hy  himself  of  exhibi-       [25] 

,.,,  I,  .       ^•\   •  1  i.1-  Infants     who 

tinff  a  bill,  as  well  on  account  oi  his  supposed  want  sue  by  their  next 

•  •  111!/'  J  iricnd.. 

of  discretion,  as  his  inability  to  bind  himself,  and  to 
make  himself  liable  to  the  costs  of  the  suit  {o). 
When,  therefore,  an  infant  claims  a  right,  or  suffers 
an  injury,  on  account  of  which  it  is  necessary  to 
resort  to  the  extraordinary  jurisdiction  of  the  court 
of  chancery,  his  nearest  relation  is  supposed  to  be 
the  person  who  will  take  him  under  his  protection, 
and  institute  a  suit  to  assert  his  rights  or  to  vindi- 
cate his  wrongs  ;  and  the  person  who  institutes  a 
suit  on  behalf  of  an  infant  is  therefore  termed  his 
next  friend  (1).  But  as  it  frequently  happens  that 
the  nearest  relation  of  the  infant  himself  withholds 
the  right,  or  does  the  injury,  or  at  least  neglects  to 
give  that  protection  to  the  infant  which  his  consan- 
guinity or  affinity  calls  upon  him  to  give,  the  court, 
in  favor  of  infants,  Will  permit  any  person  to  insti-  27 

tute  suits  on  their  behalf  (;?)  (2)  ;  and  whoever  acts       [26] 

are  not  in  some  cases  any  disability;  him  of  the  property  which  may  be 

and  where  they  are  a  disability,  if  it  the  object  of  the  suit.     Villenage  and 

is  removed  by  reversal  of  the  outlawry,  profession  were  in  the  same  predica- 

by  purchase  of  letters  of  absolution  in  ment.     See  Chap.  II.  sect.  2,  part  2. 

the  case  of  excommunication,  or  by  (o)   Turner  v.  Turner,  Strau.  708. 

conformity  in  the  case  of  a  popish  re-  [Bradwell  v.  Weeks,  1  Johns.  C.  R. 

cusant,  a  bill  exhibited  under  the  disa-  325]. 

bility  may  be  proceeded  upon.   Attain-  (p)  Andrews  v.  Cradock,  Prec.  in 

der  and  alienage  no  otherwise  disable  Chali.  376  ;  Anon.  1  Atk.  570  ;  2  P. 

a  person  to  sue  than  as  they  deprive  Wms.  120  ;  1  Ves.  Jr.  195. 

(1)  The  first  we  hear  of  a  procliein  amy  is  in  the  statute  of  West- 
minster, 2  C.  15.  Infants'  Lawyer.  In  matters  relating  to  infantSf 
the  court  often  gives  extra-judicial  directions,  and  hears  a  person  as 
amicus  curicc.  Diet,  per  cur.,  in  Earl  of  Pomfret  v.  Lord  Windhamt 
2  Ves.  484.  The  filing  of  a  bill  on  behalf  of  an  infant  makes  him  a 
ward  of  court.     Atnbl.  303.     Lord  Raymond's  case,  Forr.  60. 

(2)  Where  a  bill  is  filed  by  an  annuitant,  whose  annuity  is  charged  Misjoinder  of 
on  residuary  personal  estate,  and  by  infants  who  are  tlie  devisees  of  **  *"* '  *" 

3 


27  BY  WHOM  A  BILL  [ChAP.  I. 

thus  the  part  wliich  the  nearest  relation  ought  to 
take,  is  also  styled  the  next  friend  of  the  infant,  and 
His  responeibiii-  as  such  is  named  in  the  bill  {q).  The  next  friend 
is  liable  to  the  costs  of  the  suit  (r),  and  to  the  cen- 
sure of  the  court,  if  the  suit  is  wantonly  or  impro- 

{q)  2  Eq.  Cas.  Abr.  239  ;  1  Ves.  Jr.  contrary  appears' to  be  the  fact,  on  an 

195  [J.  J.  Marshall's  Rep.  49.]  application   by  the  defendant  before 

(r)  4  Madd.  461 ;  and  see  Turner  answer,  he  will  be  compelled  to  give 

V.  Turner,  2  P.  Wins.  297,  5'.  C.  on  security  for  costs,  or  another  person 

appeal,   2   Eq.    Ca.    Ab.   238  ;    and  will  be  appointed  to  sue  in  his  stead. 

Strange,  708.     It  is  hence,  of  course,  Wale  v.  Salter.  Mosely,  47  ;  Anon, 

important  to  the  defendant  that  the  Mosely,  86 ;  Anon.  1  Ves.  Jr.  409 ;  and 

prochein  amy,  or  next  friend  of  the  see  Pennington  v.  Alvin,  1  Sim.  &. 

infant,  be    a    person    of   substance.  Stu.  264  (1). 
Anon.   1    Atk.  507  ;  and  where   the 

leaseholds,  by  the  annuitant  as  their  next  friend,  seeking  payment  of 
the  annuity  and  the  renewal  of  tiie  leases  for  the  infants ;  this  is  a 
misjoinder ;  for  in  this  case  one  plaintiff  seeks  relief  in  which  the 
other  is  not  interested.  Besides,  if  the  annuitant  were  to  die,  the  suit 
would  abate,  though  as  to  that  portion  of  it  which  she  instituted  as 
next  friend,  it  would  not  abate  but  for  the  misjoinder.  Again,  sup- 
posing the  court  to  decide  the  one  portion  of  the  suit  in  favor  of  the 
annuitant,  and  the  other  branch  of  it  against  the  infants,  they  could 
procure  no  redress  in  case  the  annuitant,  as  their  next  friend,  refused 
to  take  any  further  steps;  or  if  the  reverse  were  to  take  place,  the 
infants  might  be  delayed. in  the  redress  awarded  to  them  by  an  appeal 
interposed  by  the  annuitant  on  his  own  behalf.  Anderson  V.  Wallis, 
4  Y.  &  C.  Eq.  Ex.  336 ;  1  Phil.  202. 
•   (t)  As  to  this  point,  see  1  Headlam's  Daniell's  Ch.  Pr.  80,  contra. 

[In  New  York,  the  next  friend  must  be  a  competent  and  responsible 
person ;  and  if  required  by  the  officer  appointing  him^  must  give  bond 
with  sureties  to  account  to  infant  for  moneys  that  may  be  recovered 
in  the  suit.     See  R.  S.  446,  f  2.  5.     Id.  144. 

Perhaps,  in  a  proper  case,  on  an  application  to  the  court,  an  infant 
who  had  no  m?ans  to  indemnify  a  responsible  person  for  costs,  might 
be  permitted  to  sue  by  his  next  friend  in  for)na  pauperis.  Fulton  v. 
Roseielt,  1  Paige's  C.  R.  180.  Chancellor  Walworth,  in  saying 
this,  adds,  "  I  see  no  objection  to  such  a  proceeding,  though  Lord  El- 
"  don  intimated  it  could  not  be  done.  But  in  such  a  case  the  court 
"  would,  in  the  first  placp,  see  that  there  Was  probable  cause  for  the 
"  proceeding,  and  appoint  a  proper  person  to  prosecute  the  suit  as 
"prochein  amy:'    And  see  the  case  in  1  Ves.  Jr.  409.] 


S.  I.]  MAY  BE  EXHIBITED.  27 

perly  instituted  (s)  :  but  if  the  infant  attains  twenty- 
one,  and  afterwards  thinks  proper  to  proceed  in  the  28 
cause,  he  is  Hable  to  the  whole  costs  (t)  (1).     If 
the  person  who  thus  acts  as  a  friend  of  an  infant      L     J 
does  not  lav  his  case  properly  before  the  court,  bv  c^nusion,  ne- 

"  I        I  J  '      V    trlect  or  mistake 

collusion,  neglect  or  mistake,  a  new  bill   may  be  '^jJ^'*" 
brought  on  belialf  of  the   infant;  and  if  a  defect  Defectinthebm. 
appears  on  hearing  of  the   cause,  the   court  may 
order  it  to  stand  over,  with  liberty  to  amend  the 
bill  (u). 

The  next  friend  of  an  infant  plaintiff  is  consi-  Examination  of 

1  a  uext  foend. 

dered  as  so  far  interested  in  the  event  of  the  suit 

(»)  An  if  the  next  friend  of  an  in-  that,  upon  a  bill  filed  in  the  name  of 

fant  do  not  proceed  in  the  cause,  this  an  infant  who  attained  twenty-one, 

court,  if  it  be  desirable,  will  supersede  the  plaintiff  was  liable  to  the  costs, 

h'lm.  Ward  V.  Ward,  3  Meriv.  706;  though  he  did  not  proceed  after  he 

1  Jac.  &  W.  483  ;  but  the  next  friend  attained  that  age  :  but  upon  a  rehear- 

of  an  infant  cannot  procure  the  sub-  ing  he  changed  his  opinion,  and  dis- 

stitution  of  another  person  to   act  in  missed  the  bill  without  costs,  thte  pro- 

his  place,  without    submitting  to  an  chein   amy  being  dead.     See  5".    C- 

investigation  into  his  past  conduct  by  Strange,  708,  and  2  Eq.Ca.  Ab.  238. 

the    court,   Mel/ing    v.    Mellirig,    4  It  now  seems,  that  if  no  misconduct 

Madd.2Gl.     If  the  next  friend  should  (Pearce  v.  Pearce,  9  Ves.  548;)  be 

die,  the  court  will  take  upon  itself  to  proved  against  the  next  friend,  either 

appoint  another.  Z/«ncas/er  v.  Thorn-  in  the  institution  or  progress  of  the 

ton,  Ambl.  398.  [1  Dick.  346,  S.  C]  suit,  the    late    infant,   although    he 

Bracey  v.  Sundiford,  3  Madd.  468.  should  not  adopt  it,  will  be  liable  to 

[See  mode  of  applying,  ibid:   and  1  the  costs.  Anon. 4  Madd.  461. 

Grant's  Prac.  341.]  (u)  Serle  v.  St.  Eloy,  1  P.  Wms. 

(0    Turner  and.rM>-«cr,  2  P.  Wms.  386.   Pritchard  v.  Quiitchant,  Amhl 

297,  Lord  King  was  first  of  opinion  147. 

(1)  The  only  exception  to  this  rule  must  be,  the  case  that  some- 
times occurs,  where  a  decree  has  been  made  during  his  infancy,  by 
which  the  infant's  rights  are  bound.  There  the  suit  cannot  be  aban- 
doned, although  it  is  not  brought  in  good  faith  and  is  against  the  in- 
terest of  the  infant.  In  such  a  case,  if  the  infant  applies  in  time,  the 
court  might  compel  the  next  friend  to  reiTnunerate  him  for  the  costs 
and  cxponses.  to  which  his  estate  has  been  improperly  subjected,  al- 
though he  was  compelled  to  proceed  under  the  decree.  Waring  v. 
Crane,  2  Paige's  C.  R.  82. 


28  BY  WHOM  A  BILL  [ChAP.  I. 

that  he  or  his  wife  (x)  cannot  be  examined  as  a 
witness  (1).  If  their  examination  is  necessary  for 
the  purposes  of  justice,  his  name  must  be  struck 

29  out  of  the  bill,  and  that  of  another  responsible  per- 
son substituted,  which  the  court,  upon  application, 

Eu^s^bcnefil!''  will  permit  to  be  done  (y).  As  some  check  upon 
the  general  license  to  institute  a  suit  on  behalf  of 
an  infant,  if  it  is  represented  to  the  court  that  a  suit 
preferred  in  his  name  is  not  for  his  benefit,  an  in- 
quiry into  the  fact  will  be  directed  to  be  made  by 
one  of  the  masters ;  and  if  he  reports  that  the  suit 
is  not  for  the  benefit  of  the  infant,  the  court  will 

btot'sni!^^  stay  the  proceedings  (z).  And  if  two  suits  for  the 
same  purpose  are  instituted  in  the  name  of  an  in- 
fant, by  different  persons  acting  as  his  next  friend, 
the  court  will  direct  an  inquiry  to  be  made  in  the 
same  manner,  which  suit  is  most  for  his  benefit ; 

(x)  Head  v.  Head,  3  Atk.  511.  (z)  Da  Costa  v.  Da  Costa,  3   P. 

(y)  Strange,  708.     As  a  general  Wms.  140 ;  Strange^  709  ;  2  Eq.  Ca. 

rule,  it  may  be  stated   that  this  is  Ab.  239  ;  [Garr  v.  Drake,  2  Johns, 

done  upon  the  next  friend  giving  se-  Ch.  Rep.  542.]     Such  an  inquiry  will 

curity  for  the  costs  incurred    in  his  not  be  directed  upon  the  application 

time.     Witts  v.  Campbell,    12    Ves.  of  the  next  friend  himself.     Jones  v. 

493  ;  Davenportv.  Davenport,  1  Sim.  Powell,  2  MerLv.  141. 
*&  Stu.  101. 

(1)  This  disability  would  seem  to  be  removed  by  tlie  statute  6  &  7 
Vict.  c.  85. 

[In  a  case  at  law,  Denniston  v.  Spurling,  1  Stra,  506,  where  an  in- 
fant brought  the  action,  the  wife  of  the  next  friend  was  called,  and  the 
court  allowed  her  to  be  a  good  witness;  while  in  Head  v.  Head,  re- 
ferred to,  above,  in  the  notes,  the  depositions  of  the  wife  of  a  next 
friend  were  not  allowed  to  be  read  for  the  plaintiff,  he  being  liable  for 
costs.  Lord  Redesdale's  rule  is  no  doubt  correct.  It  is  confirmed  by 
the  common  practice  of  applying  for  substitution,  where  the  present 
next  friend  is  wanted  as  a  witness;  as  in  Wills  v.  Campbell;  Daveri' 
port  V.  Davenport,  supra.] 


S.I.] 


MAY  BE  EXHIBITED.  29 


and  when  that  point  is  ascertained  will  stay  pro-       [28] 
ceeding  in  the  other  suit  {a). 

2.  A  married  woman  beinop  under  the  protection  2.  Mamed  wo- 

~  '^  men  who   sue 

of  her   husband,   a  suit  respecting  her  rights  is  CsbS'^'or^bJ 


usually  instituted  by  them  jointly  (b).     But  it  some- 

(a)  1  Ves.  545  ;  Owen   v.  Owen,  generally,  after  a  decree  in  one  of 

Dick.  310(1);    Sullivan  v.  Sullivan,  the  suits.    1  Jac.  R.  528. 

2    Meriv.  40;   Mortimer  v.  West,   1  (It)   Smith  v.  Myers,  3  Madd.  474; 

Swanst.  358  ;  but  it  seems  an  appli-  Farrer    v.    Wtjatt,     5    Madd.    449  ; 

cation  for  this  purpose  should  not  be  Hughes  v.   Evans,    1    Sim.   &,  Stu. 

made  except  in   a  strong   case,  Ste-  185  (2). 
vens  V.  Stevens,   6   Madd.   97 ;    nor 

(1)  [This  case  of  Owen  v.  Owen  does  not  bear  the  author  out  in  his 
saying  that  proceedings  will  be  stayed.  The  court  was  pressed  to  re- 
strain the  plaintiff  in  the  second  suit  from  prosecuting  that  suit ;  but 
Sir  Thomas  Clark,  M.  R.,  refused  to  do  so,  as  such  proceeding  would 
be  at  his  peril ;  and  on  searching  by  order  of  his  honor,  precedents 
could  not  be  found,  the  parties  generally  resting  on  the  report.  And 
in  Taylor  v.  Oldham,  1  Jacob's  Rep.  527,  the  court  rightly  felt  the 
difficulty  of  staying  the  second  suit ;  for  there  might  never  be  a  decree 
in  the  first  cause.  Bonnet,  in  his  late  work  on  the  Duties  of  Masters, 
says,  it  will  be  referred  to  the  master  to  see  which  is  most  for  the  in- 
fant's profit ;  and  upon  these  references  tlie  master  is  at  liberty  to  sug- 
gest any  improvement  in  the  frame  of  the  suit,  and  to  report  any  spe- 
cial circumstances  that  in  his  opinion  may  be  for  the  infant's  benefit, 
p.  45] 

(2)  [Schuyler  v.  Hoyle,  6  Johns.  Ch.  Rep.  196.  As  a  general  rule, 
no  temporary  absence  of  a  husband  or  separate  maintenance,  or  living 
apart,  will  enable  a  wife  to  sue  or  be  sued,  alone.  But  if  he  is  an 
alien  who  has  never  resided  within  the  jurisdiction,  she  can.  Robin- 
son V.  Reynolds,  1  Aiken's  (Vermont)  Rep.  174.] 

So  in  Massacliusetts,  it  has  been  held,  that  the  wife  may  sue  as  a 
feme  sole,  where  the  husband  abandoned  her  abroad,  or  there  com- 
pelled her  to  leave  him,  and  she  has  come  hither,  and  maintained  her- 
self as  a  feme  sole.  (16  Mass.  Rep.  31.  6  Pick.  Rep.  89.)  But 
these  cases  conflict,  it  seems,  with  recent  English  decisions.  (See 
the  cases  cited.  Story's  Eq.  PI.  c.  3,  §  61,  n.  1.) 

In  New  York,  by  the  Code  of  Procedure,  the  rule  is  now  laid  down 
generally,  that  "  when  a  married  woman  is  a  party,  her  husband  must 
be  joined  with  her,  except  that,  1.  When  the  action  concerns  her  sep- 
arate property,  she  may  sue  alone ;  2.  When  the  action  is  between 
herself  and  her  husband,  she  may  sue  or  be  sued  alone."     (Code,  \  94.) 


theirnextfriend. 


29'  BY  WHOM  A  BILL  [ChAP.  I. 

times  happens  that  a  married  woman  claims  some 
right  in  opposition  to  rights  claimed  by  her  hiis- 
30  band  ;  and  then  the  husband  being  the  person,  or 

one  of  the  persons,  to  be  complained  of,  the  com- 
plaint cannot  be  made  by  him.  In  such  case, 
therefore,  as  the  wife  being  under  the  disability  of 
coverture  cannot  sue  alone,  and  yet  cannot  sue 
under  the  protection  of  her  husband,  she  must  seek 
other  protection,  and  the  bill  must  be  exhibited  in 
her  name  by  her  next  friend  (c),  who  is  also  named 
in  the  bill  in  the  same  manner  as  in  the  case  of 
an  infant  (d)  (1).     But  a  bill  cannot  in  the  case  of 

(c)  Griffith  V.  Hood,  2  Ves.  452  ;  of  a  feme  covert  is  not  always,  in 
Lady  Elibank  v.  Montolieu,  5  Ves.  the  first  instance,  liable  to  the  costs. 
737 ;  Pennington  v.  Alvin,  1  Sim.  Strange,  709  ;  2  Eq.  Ca.  Ab.  239  j 
&  Stu.  264.  Barlee  v.  Barlee,  1  Sim.  &  Stu.  100. 

(d)  But,  it  seems,  the  next  friend 

Her  disqualification  as  well  as  privilege,  as  thus  defined,  extends  to 

actions  whether  of  legal  or  equitable  nature  ;  whereas  formerly  she 

might  sue  her  husband  in  equity,  but  not  at  law.     (See  Story's  Eq. 

Juris.  §  1368.     Story's  Eq.  PI.  ^  61—3.) 

Suits  respecting      (])  Husband  and  wife  ought  not  to  join  as  plaintiffs  in  a  suit  rela- 
separate   estate. 

ting  to  the  wife  s  separate  property,  but  the  bill  ought  to  be  filed  by  the 

wife  alone,  by  her  next  friend,  and  her  husband  ought  to  be  made  a  de- 
fendant :  first,  because  the  husband  may  have  filed  the  bill  in  his  wife's 
name,  without  her  knowledge  or  consent,  and  may  by  collusion  with 
the  other  parties  have  the  accounts  improperly  taken  :  and  secondly, 
because  the  wife  being,  as  to  her  separate  estate,  entitled  to  prosecute 
a  suit  by  her  own  authority,  independently  of  her  husband,  a  suit  by 
her  and  her  husband,  which  is  considered  as  the  suit  of  the  husband 
alone,  would  not  prevent  her  from  instituting  another  suit;  so  that  the 
defendant  might  be  annoyed  by  two  suits  instead  of  one.  If  the  ob- 
jection is  taken  by  demurrer,  the  court  will  give  leave  to  amend,  by 
striking  out  the  name  of  the  husband  as  plaintiff",  and  as  next  friend  of 
his  infant  children,  where  he  is  named  as  such,  and  making  him  a  de- 
fendant, and  by  inserting  the  name  of  another  person  as  next  friend. 

Wakev.  Parker,  1  Keen,  59  ;  England  v.  Downs,  1  Beav.  96  ;  Oicden 
V.  Campbell,  8  Sim.  551  ;    Sigel  v.  Phelps,  7  Sim.  239  ;    Thorp  v. 

Yeales,  1  Y.  &  C.  Ch.  C.  438  ;  Daiis  v.  Prout,!  Beav.  288. 
In  "Bowers  v.  Smith,  10  Paige  Rep.  201.  194,  it  was  held  also  by 


S.  I.]  MAY  BE  EXHIBITED.  31 

a  feme-covert  be  filed   without   lier  consent  (e). 

(e)  Andrews  v.  Cradock,  Prec.  in  1  Sim.  &  Stu.  2G5  ;  [Fullonv.Rose- 
Ch.  376 ;  S.C.I  Eq.  Cas.  Abr.  72  ;     velt,  1  Paige  Oh.  Rep.  178.] 

the  Chancellor,  that  a  suit  to  settle  any  question  as  to  the  separate  es- 
tate of  a  wife  in  personal  property,  bequeathed  to  her  separate  use, 
free  from  (he  control  of  her  husband,  is  not  properly,  to  be  brought  in 
their  joint  names.  But  that  if  defendant  answer  the  bill  without  ob- 
jection, he  probably  waives  the  objection  that  the  husband  is  not  the 
proper  party  to  file  the  bill  for  wife's  separate  estate. 

In  Dyftt  and  wife  v.  North  Amer.  Coal  Co.  20  Wend.  Rep.  570 — 5. 
On  affirmance  of  S.  C.  7  Paige  Rep.  9,  &t  seq.,  in  relation  to  the  effect 
of  admissions  as  against  her  in  a  joint  answer  touching  her  separate 
estate.  Justice  Cowen,  on  whose  opinion  the  court  of  errors  unani- 
mously affirmed  the  decision  below,  says  :  when  her  separate  estate  is 
completely  distinct,,  and  as  here  independent  of  her  husband,  she  seems 
to  be  regarded  in  equity,  as  to  her  power  to  dispose  or  charge  it,  to 
all  intents  and  purposes  as  S,  feme  sole,  excepting  so  far  as  her  power 
is  limited  by  the  instrument  under  which  she  takes  her  interest. 
Hence  she  may  sue  or  be  sued  by  her  husband,  or  become  a  substan- 
tial party  against,  or  at  suit  of  others.  As  to  form  of  proceeding,  she 
must  sue  by  her  prochein  amy,  or  her  husband  may  by  her  consent  be 
joined  with  her  against  a  third  person.  So  he  must  be  made  party  de- 
fendant when  she  is  sued,  but  he  is  then  merely  a  formal  party.  Ad- 
missions, however,  in  their  joint  and  several  answer  bind  her.  See 
farther.  Id. 

[In  a  court  of  equity,  although  not  at  law,  baron  and  feme  are  con-  suits  by  wife 
sidered  as  two  different  persons ;  and,  therefore,  it  is  that  a  wife  by  her  ^|nj**  ' 

prochein  amy  may  sue  her  own   husband.     Siurgis  v.  Corp,  13  Ves. 
190;  3  P.  Wms.  38,  note  A;  Kirk  v.  Clark,  Prec.'in  Ch.  275.] 

[In  Tennessee,  a  bill  has  been  allowed  to  be  brought  by  a  feme  co- 
vert, for  separate  maintenance  without  a  next  friend,  where  security  for 
costs  was  given.     Knight  v.  Knight,  1  Overton's  Rep.  120.] 

In  New  Jersey,  a  wife  may  in  her  own  name,  apply  for  divorce  for 
any  cause.  Awos  v.  A?nos,  3  Green's  Cli.  Rep.  171.  As  to  the  rule  in 
New  York,  under  the  new  code,  see  n.  (2),  p.  29,  supra. 

[By  the  Revised  Statutes  of  the  State  of  New  York,  Vol.  ii.  p.  144, 
\  39,  a  bill  for  a  divorce  dissolving  the  marriage  contract,  may  be  exhibi- 
ted by  a  wife  in  her  own  name,  as  well  as  by  her  husband.  A  bill  to 
annul  a  marriage  on  the  ground  that  one  of  the  parties  was  under  the 
age  of  legal  consent,  may  be  brought  by  tlie  parent  or  guardian  enti- 
tled to  the  custody  of  such  minor,  or  by  the  next  friend  of  such  minor, 
lb.  142,  }  21.  If,  on  the  ground  of  idiotcy  or  lunacy,  any  relative  of 
:6uch  idiot  interested  to  avoid  the  marriage  may  file  a  bill.     lb.  \  24, 26. 


31  BY  WHOM  A  BILL  [ClIAP.  I.^ 

The  consent' of  an  infant  to  a  bill  filed  in  his  name 
is  not  necessary  (/). 
[29]  3.  The  care  and  commitment  of  the  custody  of. 

Licsr""'*^''  the  persons  and  estates  of  idiots  and  lunatics  are 
the  prerogative  of  the  crown,  and  are  always  in- 
trusted to  the  person  holding  the  great  seal,  by  the 

(/)  Andrews  v.   Cradock,  Free,  in  Ch.  376  ;  [2  Paige  Ch.  Rep.  178.] 


And  where  the  marriage  of  an  idiot  or  lunatic  is  sought  to  be  annulled 
during  tlie  life-time  of  both  the  parties  to  the  marriage,  and  no  suit 
shall  be  prosecuted  by  any  relative,  a  bill  may  be  filed  on  tlie  applica- 
tion of  any  person  admitted  by  the  court  to  prosecute  as  the  next  friend 
of  such  idiot  or  lunatic.  lb.  143,  ^  26.  After  a  restoration  of  reason, 
the  party  who  has  returned  to  sanity  may  file  such  bill.  Ih.  g  27.  If 
on  account  of  force  or  fraud,  on  the  application  of  the  wronged  party;, 
or  of  the  parent  or  guardian  of  such  party.  lb.  J  30.  If  on  the  ground 
of  physical  incapacity,  by  the  injured  party  against  the  party  whose 
incapacity  is  alleged,  suits  to  annul  a  marriage  are  directed  to  be  by 
bill.  lb.  144,  5  35.  A  separation  from  bed  and  board  for  ever,  or  for 
a  limited  time,  may  be  decreed  by  the  court  of  chancery  on  the  com- 
plaint of  a  married  woman.     ^  50. 

But  no  bill  is  to  be  filed  in  the  name  of  a  feme  covert  to  obtain  a 
sentence  of  nullity  declaring  void  her  marriage  contract,  or  to  obtain  a. 
decree  for  a  separation  or  limited  divorce,  unless  the  suit  is  prosecuted, 
by  a  responsible  person,  as  the  next  friend  of  the  complainant,  who  is 
to  be  responsible  to  the  defendant  for  such  costs  as  may  be  awarded  by 
the  court,  if  it  appear  the  suit  was  commenced  without  any  reasonable 
or  justifiable  cause.  Lawrence  v.  Lawrence,  3  Paige's  Ch.  Rep.  267  ; - 
163  Rule  of  N.  Y.  Chancery.  The  validity  of  this  rule  was  tested 
and  supported  in  Wood  v.  Wood,  2  Paige's  Ch.  Rep.  464;  S.  C.  on 
appeal,  8  Wend.  357.  It  will  be  seen  th;it  this  rule  does  not  touch  a 
case  of  adultery;  there,  a  bill  may  be  filed  by  the  wife  without  a  next 
friend  :  and  see  Kirby  v.  Kirby,  2  Paige's  Ch.  Rep.  261.  See  the  his- 
tory of  the  law  of  divorce  in  the  State  of  New  York,  in  Burtis  v. 
Burtis,  1  Hopk.  557.]  The  New  York  statutes  on  divorce  are  original 
regulations,  and  do  not  adopt  the  English  law,  which  is  chiefly  eccle- 
siastical. See  Johnson  v.  Johnson,  14  Wend,  in  Err.  637.  648.  Bur- 
tis V.' Burlis,  1  Hopk.  557.  [Where  a  married  woman  is  a  complainant 
and  her  prochein  amy  dies,  she  must  naine  a  new  next  friend  in  due 
time  afterwards,  or  her  bill  will  be  dismissed.  Vice-chancellor  Leach, 
ordered  it  to  be  done  within  two  months.  Barlee  v.  Barl  e,  1  S.  & 
S.  100.] 


S.  I.]  MAY  BE  EXHIBITED.  31 

royal  sign-manual  (1).  By  virtue  of  tiiis  authority, 
upon  an  inquisition  finding  any  person  an  idiot  or 
lunatic,  grants  of  the  custody  of  the  person  and 
estate  of  the  idiot  or  lunatic  are  made  to  such  per- 
sons as  the  lord  chancellor,  or  lord  keeper,  or  lords 
commissioners  for  the  custody  of  the  great  seal  for 
the  time  being,  think  proper  (g).  Idiots  and  luna-  rommmeee^^'or'' 
tics,  therefore,  sue  by  the  committees  or  their  es-  general. 
tates   (h)   (2).     Sometimes,  indeed,   informations 

(g)  3  F.Wma.  106,  107;  Ex  parte         (h)  1   Ca.  in  Ch.   19;  Ridler   v. 
Pickard,  3  Ves.  &  Bea.  127.  Ridler,   1   Eq.  Ca.  Ab.  279  ;  Prac. 

Reg.  272,  Wy.  Ed. 


(1)  [By  the  statutes  of  the  State  of  Ne\V  .York,  the  chancellor  had 
(prior  to  the  abolition  of  the  court,  and  transfer  of  its  powers  to  the  law 
courts,)  the  exclusive  care  and  custody  of  all  idiots,  lunatics,  persons  of 
unsound  mind,  and  those  who  are  incapable  of  conducting  their  own  af- 
fairs in  consequence  of  habitual  drunkenness.  2  R.  S.  62,  §  1  ; 
UAmoureax,  commiltee,  v.  Crosby,  2  Paige's  Ch.  Rep.  422.]  In  some 
other  States,  as  Massachusetts,  guardians  are  appointed  by  courts  of 
probate,  with  similar  powers.  See  Story's  Eq.  PI.  ^  64 — 6.  70,  and  notes. 

(2)  [The  court  of  chancery  has  no  jurisdiction  in  the  matter  of  luna- 
tics, unless  they  are  found  to  be  .so  under  a  commission  of  lunacy,  or 
they  are  parties  in  the  cause  in  court.     In  re  Scott,  3  Legal  Obs.  164. 

In  the  consistorial  court  of  London,  a  father,  not  being  committee, 
instituted  a  suit  to  annul  the  marriage  of  an  insane  son,  and  the  suit 
was  dismissed.  A  suit  was'  afterwards  brought  by  the  son  who  had 
become  of  age  and  sane,  and  it  was  sustained. 

A  bill  of  complaint  may  be  taken  off  the  files  of  the  court,  if  filed 
in  the  name  of  a  plaintiff  who  was  in  a  state  of  mental  incapacity. 
Wartnahy  v.  Wartnaby,  1  Jao.  R.  377. 

In  the  appointment  of  a  committee,  relations,  unless  there  is  some 
specific  objections,  are  preferred  to  strangers.  Ex  parte  Cockayne,  7 
Ves.  591  ;  Ex  parte  Le  Heup,  18  lb.  222  ;  Mat'er  of  Lirrngston,  1 
J.  C.  R.  436.  The  s  ame  person  may  be  committee  of  the  person  and 
of  the  estate;  and  he  may  likewise  be  appointed  guardian  in  a  suit- 
Ex  parte  Bruomfield..  3  B.  C.  C.  510  ;  Ex  parte  Ludlow,  2  P.  W.  635; 
Westcombv.  Sarne,  Dick.  233.  The  committee  ought  to  be  resident 
within  the  jurisdiction  of  the  court ;  and  if  he  goes  out  of  it,  he  ought 
not  to  be  continued  in  the  character  of  committee.  In  such  a  case, 
it  is  his  duty  to  give  up  his  office.     Ex  parte  Ord.  1  Jacob's  R.  94. 


31  *  BY  WHOM  A  BILL  [ChAP.  I. 

have  been  exhibited  by  the  attonley-general  on  be- 
half both  of  idiots  and  lunatics,  considering  them 
as  under  the  peculiar  protection  of  the  crown  (^), 

(i)  Att.  Gen.  V.  Parkhurst,  1  Ca.  1  Ca.  in  Ch.  153  ;  3  Bro.  P.  C.  633. 
in  Ch.  112 ;    Att.  Gen.  v.-  Woolrich,     Toml.  Ed. 

Committees  must  give  security,  and  be  also  otherwise  proper  and 
responsible  persons  so  as  to  be  sufficient  to  bear  costs,  &c.  In  re 
Frank,  2  Russ.  Rep.  450;  2  Eden,  supra.  And,  in  the  State  of  New 
York,  additional  security  may  be  required  for  the  faithful  application 
and  accounting  for  tlie  proceeds  ari.sing  from  a  sale,  lease  or  mortgage. 
2R.S.  54,5  14. 

Where  no  one  can  be  procured  to  act  as  committee  of  the  estate, 
or  where  the  committee  resides  at  a  considerable  distance  from  the 
estate,  a  receiver  may  be  appointed,  with  a  salary,  upon  giving  such 
security  as  a  committee  ^oes.  Ex  parte  Warren,  10  Ves.  612;  and 
see  Ambl.  104. 

A  committee  will  sometimes  be  appointed  without  a  reference,  where 
the  property  is  small.      In  re  Adams,  1  Rus.  &  M.  112. 

The  committee  can  make  himself  a  party  to  a  petition,  without  a 
bill  filed,  and  thereby  obtain  an  order  to  restrain  waste  on  the  real  es- 
tate of  the  lunatic.     Matter  of  Hallock,  7  J.  C.  R.  24. 

Where  a  committee  of  a  lunatic  sues  for  anything  in  the  right  of 
the  lunatic,  in  such  case  the  cpmmittee  as  well  as  the  lunatic,  are 
made  parties.  It  is  as  needful  to  make  the  lunatic  a  party  as  an  infant, 
where  a  suit  is  on  his  behalf.  But  in  the  case  of  an  idiot,  it  must  be 
otherwise.  Fuller  v.  Lance,  1  C.  C.  18  n;  Attorney  General  v.  Wool- 
rich,  lb.  153. 

A  lunatic  is  not  a  necessa^-y  party  plaintiff  with  his  committee  on  a 
bill  to  set  aside  an  act  done  by  the  lunatic,  under  mental  imbecility,  and 
although  it  is  the  general  practice  to  join  them,  it  is  only  a  matter  of 
form.     Orlley  v.  Mef^sere,  7  J.  C.  R.  139.] 

The  general  rule  as  to  parties  now  established  in  New  York  by  the 
Code  of  Procedure,  (tit.  3,  \  91,  et  seq.,)  is,  that  every  action  must  be 
prosecuted  in  the  name  of  the  real  party  in  interest,  excepting  in  cer- 
tain specified  cases.  But  the  reason  of  the  rule  is  to  produce  uni- 
formity in  the  prosecution  of  legal  or  equitable  demands ;  formerly, 
assignees  of  certain  choses  in  action  must  have  sued  at  law  in  name 
of  assignor,  not  so  now.  (See  the  title  of  the  code,  supra.)  It  does 
not  apply,  it  seems,  to  persons  under  mental  disability,  in  whose  names, 
the  committee  of  their  persons  and  estate,  prosecute  as  usual,  it  is 
presumed,  with  or  without  joining  the  name  of  the  individuals  who  are 
of  non-sane  understanding. 


S.  I.]  MAY  BE  EXHIBITED. 


31 


and  particularly  if  the  interests  of  the  committee 
have  clashed  with  those  of  the  lunatic  (/>•).  But 
in  such  cases,  a  proper  relator  ought  to  be  named  (I); 
and  where  a  person  found  a  lunatic  has  had  no  32 

committee,  such  an  information  has  been  filed,  and       L^  -1 
the  court  has  proceeded  to  give  directions  for  the  . 
care  of  the  property  of  the  lunatic,  and  for  proper 
proceedings  to  obtain  the  appointment  of  a  com- 
mittee (m). 

Persons    incapable    of  acting    for    themselves  °„*|'g^J"g°°"-^°'^- 
though  not  idiots  or  lunatics,  or  infants,  have  been 
permitted  to  sue  by  their  next  friend,  without  the 
intervention  of  the  attorney-general  (n)  (1), 

(h)  See    Att.    Gen.  v.   Panther,         (m)  Ait.  Gen.  on  behalf  of  Maria 

Dick.  748.  Lepine,  a  lunatic,  at  the  relation  of 

(Z)  Att.  Gen.  at  relation  of  Griffith  John  Fox  ;  and  also  Maria  Lepine 

Vaughan,   a  lunatic,   against    Tyler  against    Earl    and    Countess    Howe 

and  others,  11   July,  1764.     On  mo-  and   others.      26    Marcli,     1793— 3 

tion,  ordered  that  a  proper    relator  April  1794. 

should  be  appointed,  who  might  be         (n)   Eliz.     Liney,   a    person  deaf 

responsible  to  the  defendants  for  the  and  dumb,  by  her  next  friend,  agamst 

costs  of  the  suit.     See  Dick.  378  ;  2  Thomas   Witherly  and  others.      In 

Eden.  230.     And  see   Att.   Gen.  v.  chancery — Decree,     1     Dec.    1760. 

Plumptree,  5  Madd.  452,  though  the  Decree  on  supplemental  bill,  4  March, 

case  of  a  charity  information.  1779.     See  Wartnaby  v.  Wartnaby, 

IJac.  Rep.  377. 

(1)  [Chancellor  Thurlow  has  said,  he  was  not  against  the  practice 
of  finding  a  man  lunatic  who  was,  by  the  infirmities  of  age,  unequal 
to  the  management  of  his  affairs.  But  the  more  usual  course  in  the 
English  court  is  to  appoint  him  a  guardian,  or  some  person  to  act  for 
him,  in  the  receiving  and  managing  his  property.  Cur.  Can.  468; 
Wyatt's  P.  R.  272;  Sackvill  v.  Ayleicorth,  1  Vern.  106,.  and  cases 
there ;  Attorney  General  v.  Tyler,  2  Eden.  230  ;  Highra.  on  Lun.  4. 
In  the  matter  of  Barker,  2  J.  C.  R.  232,  a  commission  was  issued 
against  a  party  who,  from  age,  had  become  incapacitated.] 

[In  Malin  v.  Mnlin,  2  Johns.  Ch.  Rep.  238,  one  Jemima  Wilkinson, 
who  was  a  necessary  party  plaintiff,  had  religious  scruples  from  be- 
coming a  party  to  any  suit.  Chancellor  Kent  said,  "  if  Jemima  W. 
"  has  religious  scruples  which  cannot  be  surmounted,  and  this  shall  be 


32  BY  WHOM  A  BILL  [ChAP.  L 

Defendants  ^  ^j^jj  ^^^  ^^  exhibited  against  all  bodies  politic 

and  corporate,  and  all  persons,  as  well  as  infants, 
married  women,  idiots  and  lunatics,  as  those  who 
are  not  under  the  same  disability,  excepting  only 

rmai^iod"wS'*  the  king  and  queen  (o).     But  to  a  bill  filed  against 

man,  idiot,  or  lu-  .      ,  i  i  i  i  i         i 

natic.  a  married  woman  her  husband  must  also  be  a  party ,^ 

unless  he  is  an  exile,  or  has  abjured  the  realm  (1); 
and  the  committee  of  the  estate  of  an  idiot  or  lu- 
natic must  be  made  defendant  with  the  person 
whose  property  is  under  his  care  (2).     Where  the 

•     (o)  .See  Chap.  II.  sect.  1,  p.  [102.] 

"  made  to  appear,  either  by  affidavit  or  the  report  of  a  master,  perhaps 
"  she  may  be  permitted  to  become  plaintiff  by  he  prochein  amy.  A 
"  person  incompetent  to  protect  himself  from  age  or  weakness  of  mind, 
"  or  from  some  religious  delusion  or  fanaticism,  quern  urget  fanaticus 
"  error,  vel  inacunda  Diana,  ought  to  come  under  the  protection  of  the 
.    "court."] 

d)  \^Pain  V.  ,  Gary,  92  ;  Same  book,  55  ;  Clark  v.  Lord,  An- 
gler, 1  C.  C.  41 ;  Pierce  v.  Thorvly,  2  Sim.  167.  This  is  not  invaria- 
bly the  case,  for  she  may,  possibly,  claim  in  opposition  to  her  husband. 
Wyhourn  v.  Blount,  1  Dick.  155  ;  Newsome  v.  Bowyer,  3  P.  Wms.  38, 
note  a ;  Ferine  v.  Sivaine,  1  J.  C.  R.  24  ;  Ferguson  v.  Smith,  2  lb.. 
139;  and  see  Carey  v.  Whiitipgham,  1  S.  &  S.  163.  Or,  she  may- 
have  been  sued  by  her  husband.  Ex  parte  Strangeways,  3  Atk.  478. 
Perhaps  they  may  be  living  separate.  Barry  v.  Cane,  3  Mad.  Rep. 
472 ;  and  see  Chambers  v.  Bull,  1  Anst.  269  ;  Leiihly  v.  Taylor,  Dick. 
372;  lb.  138.  143.  155;  Plomer  v.  Plomer,  1  C.  R.  68  ;  Ormsby  v. 
White,  1  Hogan's  C.  R.  254.  Or  she  or  he  may  be  lunatic  ;  or  she 
may  be  deserted  ;  or  the  husband  may  be  necessarily  abroad.  1  Grant^s 
Pract.  (^2d  edit.)  ;  Glover  v.  Young,  Bunb.  167;  Carter  v.  Carter,  I 
Paige's  Ch.  Rep.  463  ;  Bushell  v.  Bushell,  1  S.  &  S.  164.  Or,  she 
may  be  under  age.  1  Vent.  Rep.  185  ;  Moore  v.  Greenville,  Totti.  95.. 
If  a  plea  or  demurrer  is  necessary,  they  must,  in  ordinary  cases,  both 
join.     Pain  v. ,  supra  ;  Spicer  v.  Pakine,  Gary,  39.] 

(2)  [Sackcill  v.  Ayleuorth,  1  Vern.  105;  note  13,  at  p.  Ill  of  3  P- 
Wms.  The  soundness  of  the  observation  here  made,  as  to  joining  the 
lunatic  with  his  committee  as  a  defendant,  may  well  be  doubted  ;  see 
what  Chancellor  Kent  says  in  The  Executors  of  Brasher  v.  Van  Cort- 
landt,  2  J.  C.  R.  242,  and  cases  there  referred  to;  but  aho  see  Harri- 


S.  I.]  MAY    BE    EXHIBITED.  32 

rights  of  the  crown  are  concerned,  if  they  extend  Hg^htfof^'the 
only  to  the  superintendence  of  a  pubhc  trust,  as  in  cerae°d."^  *'°°' 
the  case  already  mentioned  of  charity,  the  king's 
attorney-general  may  be  made  a  party  to  sustain 
those  rights  ;  and  in  other  cases,  where  the  crown 
is  not  in  possession,  a  title  vested  in  it  is  not  im- 
peached, and  its  rights  are  only  incidently  concerned? 
it  has  generally  considered  that  the  king's  attorney- 
general  may  be  a  party  in  respect  of  those  rights,  [31]      33 
and  the  practice  has  been  accordingly  (j^).     But 
where  the  crown  is  in  possession,  or  any  title   is. 
vested  in  it  which  the  suit  seeks  to  divest  or  affect, 

,  (p)  See  Balch  v.  Wastall,  1  P.  Wms.  445  ;  Bolder  v.  Bank  of  Eng- 
land, 10  Ves.  352. 

son  V.  Rowan,  Coxe's  Digest,  pi.  229.  A  person  in  the -condition  of  a 
lunatic  or  idiot  has  been  allowed  to  answer  by  guardian.  Westcomb 
V.  Westcomb,  Dick.  233  ;  Gason  v.  Garnier,  lb.  286;  and  see  Lee  v. 
Ryder,  Geld.  &  Mad.  292  ;  Anonymous,  cited  in  note  B.  3  P.  Wms. 
Ill ;  Eyre  v.  Wake,  4  Ves.  Jr.  795  ;  Wilson  v.  Grace,  14  Ves.  Jr.  171. 
Where  the  amount  of  property  has  been  small,  a  guardian  has  been 
appjinted.  Ex  parte  Picard,  3  V.  &  B.  127.  In  Howled  v.  Wilbra- 
Jiam,  5  Mad.  423,  on  motion  of  the  complainant,  a  guardian  was  ap- 
pointed to  defend  for  a  lunatic  defendant. 

If  the  committee  happens  to  be  a  defendant  in  his  own  right,  the 
-complainant  should  proceed  against  the  lunatic,  (this,  by  the  by,  would 
seem  to  show  the  latter  ought  to  be  a  party,)  and  if  the  committee  re- 
fuses to  answer  for  him,  anew  committee  will  be  appointed.     Lloyd  v. 

,  2  Dick.  460.     See  a  case  where  the  committee  was  one  of  the 

complainants.     Snell  v.  Hyatt,  Dick.  281. 

It  is  doubtful  how  far  the  insolvency  of  a  committee  will  be  a  suffi- 
cient cause  for  removing  him  as  a  party.  In  one  case  it  was  done  ; 
but  in  a  later  case,  it  was  not.  See  Ex  parte  Mildmay,  3  Ves.  Jr.  2 ; 
Ex  parte  Proclor,  1  Swanst.  G.  R.  532  ;  Ex  parte  Livingston,  1  J.  C. 
R.  436. 

Where,  after  a  decree  in  a  suit,  in  which  a  lunatic  and  his  committee 
are  defendants,  and  the  committee  dies  and  a  new  one  is  appointed;  a 
motion  should  be  made  for  an  order  that  the  latter  be  named  as  the 
■committee  in  all  the  future  proceedings  in  the  cause.  Lyon  v.  Mercer, 
1  Sim.  &  S.  356.] 


33  BY  WHOM  A  BILL  [Chap.  L 

or  its  rights  are  the  immediate  and  sole  object  of 
the  suit,  the  application  must  be  to  the  king  by  pe- 
tition of  right  {q),  upon  which,  however,  the  crown 
may  refer  it  to  the  chancellor  to  do  right,  and  may 
dn-ect  that  the  attorney-general  shall  be  made  a 
party  to  a  suit  for  that  purpose;  or  a  suit  may  be 
instituted  in  the  court  of  exchequer,  as  a  court  of 
revenue,  and  general  auditor  for  the  king,  and  re- 
lief there  obtained,  the  attorney  general  being 
made  a  party  (r)  (1).  The  queen  has  also  the 
same  prerogative  (s). 
partie^s^^fJfthe  A  sult  uiay  affect  the  rights  of  persona  out  of  the 
Aiien8,''&cr'  jurisdiction  of  the  court,  and  consequently  not  com- 
pellable to  appear  in  it  (2).     If  they  cannot  be  pre- 

(j)    See  legal    jurlc.    in    Chanc.  chancery,  24  Oct.  1746 ;  Pawlett  v^ 

stated  p.   18.      Reeve   against    Att.  Att.  Gen.  in  Excheq.  Hardres,  465  ; 

Gen.  mentioned  in  Pen?)  against  Zior(Z  Poole  v.  Att.  Gen.  Excheq.  Parker, 

Baltimore,  1   Ves.  445,  446.      The  272  ;  Wilkes's  case,  Exch.  Lane,  54. 

bill  was  dismissed  27  Nov.  1741,  by  .    (s)    2  Roll.    Ab.   213.      But  see 

Lord  Hardwicke.  Staunf.  Prffier.  75—6.   9  Hen.  VL  53. 

(r)  Lord  Hardwicke,  in  Huggins  Writ  of  annuity  against  Joan  qneeu 

and    York-buildings    Company,    in  dowager  of  Henry  IV. 

(1)  See  note  (1)  page  6.  .  - 

Suit  by  a  foreign       (2)  A  foreign  sovereign  may  sue  in  equity.     Hullettv.  The  King 
sovereign.  ^j.  g-^^j^^  g  Bligh.  31,  (N.  S.)  ;  and  in  the  courts  of  the  United  States, 

(Stery's  Eq.  PI.  \  65,  n.  3.  See  also,  Id.  \  69,  69  a,  4th  ed.)  .  But 
alien-spverei^-ns,  and  their  jepresentatives  of  the  sovereignty  of  the 
respective  nations  abroad,  are  exempted  from  civil  prosecutions.  The 
law  of  nations  sanctions  their  inviolability.  By  the  constitution  of 
the  United  States,  (Art.  3,  sec.  2,)  tlue  supreme  court  of  the  United 
States  has  original  jurisdiction  in  all  cases  affecting  ambassadors, 
other  public  ministers  and  consuls,  and  those  in  which  a  State  is  a 
party.  The  judicial  power  of  the  United  States  also  extends  to  con* 
troversies  to  which  the  United  States  is  a  party,  or  between  two  or 
more  states,  between  a  state  and  citizen  of  tinother  state  ;  (but  not  to 
any  suit  commenced  or  pro?ecHted  against  one  of  the  United  States 
Itj  citizens  of  another  state,  or  by  citizens  or  subjects  of  any  foreign 
state.    Art  11  of  Amendments,)  between  citizens  of  different  states, 


S.  I.] 


MAY   BE    EXHIBITED.  34 


vailed  upon  to  make  defence  to  the  bill,  yet,  if  there 
are  other  parties,  the  court  will  in  some  cases  pro- 
ceed against  those  parties  (t) ;  and-  if  the  absent 
parties  are  merely  passive  objects  of  the  judgment 
of  the  court,  or  their  rights  are  incidental  to  those  [321 
of  parties  before  the  court,  a  complete  determination 
may  be  obtained  (u)  ;  but  if  the  absent  parties  are 

(t)   Williams  v.  Whinyaies,  2  Br.  that  the  decree  was  contrary  to  the 

C.  C.  399  ;  1  Sch.  &  Lefr.  240;   16  will,  and  that  the  University  of  Glae- 

Ves.  326.  gow  had  not  been  made  party  to  the 

(«)    In  Att.  Gen.  at   relation   of  suit ;  Lord  Hardwicke  ovorruled  the 

University  of  Glasgow  against  Ba-  latter  objection,  as  the  university  of 

liol  College  and  others,  in  chancery  Glasgow    was  a  corporation    out    of 

Dec.  llth*  1741,   which  was  an  in-  the  reach  of  the  process  of  the  court, 

formation  filed,  impeaching  a  decree  which    warranted    the     proceeding 

made  in  1699,  on  an   inforiiiation  by  without  making  that  body    party   to 

the    attorney-general     against     the  the  suit.     See    Walley  v.   W/ialley, 

trustees  of  a  testator,  his    heirs  at  1   Vern.-  487 ;    Rogers    v.    Linton, 

law,  and  others,  to  establish  a  will,  Bunb.  200  ;  Quintine  v.  Yard,  1  Eq. 

and  a  charity  created  by  it,  alleging  Ca.  Abr.  74. 

between  citizens  of  the  same  state  claimiixg  lands  under  grants  of  dif- 
ferent states  ;  and  between  a  state,  or  the  citizens  thereof,  and  foreign 
stales,  citizens,  or  subjects,  in  which  cases  the  feupreme  court  of  Uni- 
ted States  has  appellate  jurisdiction,  both  as  to  law  and  facts,  with  such 
exceptions  and  under  such. regulations  as  congress  shall  make.  Const, 
ib.  art.  3,  ^  2. 

In  a  suit  against  a  sovereign  prince,  who  is  also  a  British  suhject,  the  g„it  against  afo- 
bill  ought,  upon  the  face  of  it,  to  show  that  the  subject  matter  of  it  ''e'sn  sovereign, 
constitutes  a  case  on  which  a  sovereign  prince  is  liable  to  be  sued  as 
a  subject.     The  Duke  of  Brunswick  v.  The  King  of  Hanover,  6  Beav. 
1.     (See  this  case  as  quoted  in  Story's  ilq.  I'l.  \  69  a,  4th  ed.,  and  see 
Id.  5  69.) 

A  foreign  state  may  sue  in  equity.  But  it  must  sue  in  the  names  .^uitbyn  foreign 
of  some  public  officers  whaare  entitled  to  represent  its  interests,  and 
upon  whom  process  can  be  served  on  the  part  of  the  defendants,  and 
who  can  be  called  upon  to  answer  the  cross  bill"  of  the  defendants. 
And,  therefore,  wiiere  a  bill  was  filed  by  "the  government  of  the  state 
of  Columbia,  and* Don- M.  J.  Hiirtado,  a  citizen  of  that  state,  and  min- 
ister plenipotentiary  from  tiie  same,"  &.C.,  a  general  demurrer  to  the 
whole  bill  was  ailmved.  7  he  Columbiam  Government  v.  Rathschild, 
1  Sim.  94. 


34  BY   WHOM   A    BILL  [ChAP.    I. 

to  be  active  in  the  performance  of  a  decree,  or  if 
they  have  rights  vi^hoUy  distinct  from  those  of  the 
other  parties,  the  court  cannot  proceed  to  a  deter- 
mination against  them  (x)  (1). 

(x)  See  Fell  v.  Brown,  2  Bro.  C.  an  absolute  defect  of  justice,  which 
C.  276;  [Bifield  V.  Taylor,  1  Beatty,  seems  to  require  the  interposition  of 
91.]     Hence  there  sometimes  arises     the  legislature. 

(1)  The  doctrine  of  the  text  is,  that  a.suit  may  affect  the  rights  of 
persons  out  of  the  jurisdiction,  and  therefore  not  compellable  to  ap- 
pear, who  cannot  be  prevailed  on  to  make  defence,  who  are  merely  pas- 
sive under  the  judgment,  not  active  in  the  decree;  or  whose  rights  are 
not  wholly  distinct  but  incidental  from  those  of  the  parties  before  the 
court :  otherwise  the  court  cannot  proceed  to  a  determination  against 
them,  and  by  consequence  there  is  in  England,  sometimes  a'  failure  of 
justice  that  seems  to  require  legislative  interposition  ;  note  (x),  ut  sup. 

The  practice  in  England  is,  where  there  are  necessary  parties,  to 
state  in  the  bill  that  they  are  without  the  jurisdiction,  and  to  pray  pro- 
cess whenever  they  come  within  the  jurisdiction.  See  post,  399. 
Smith  V.  Hibernian  Mine  Co.  1  Scho.  &  Lef.  240.  2  lb.  548.  Ed- 
wards on  Parties,  3,  4.  They  are  thus  made  parties,  [for  none  are 
parties  as  defendants,  though  named  in  the  bill,  against  whom  process 
is  not  prayed.  Fmvkes  v.  Pratt,  1  P.  Wms.  693  ;  Windsor  v.  Wind- 
sor, 2  Dick.  707;  Coop.  Eq.  16;  Beames'  Elem.  Pleas,  148.]  They 
have  then  a  right  to  appear  as  such.  But  if  they  obstinately  refuse, 
there  may  be,  as  suggested,  a  failure  of  justice — where  their  rights 
are  primary  in'  the  suit,  or  not  merely  incidental.  For  the  principle 
applies  to  all  courts  of  equity,  that  no  court  can  adjudicate  directly 
upon  a  person's  right,  without  the  party  being  actually  or  construc- 
tively before  the  court.  Mallow  v.  Hinde,  12  Wheat.  193;  6  Cond. 
Rep.  516,  et  seq.  And  the  general  rule  founded  on  that  principle,  as  to 
parties,  (and  which  with  its  qualifications  is  treated  in  the  sequel,  p. 
43.  190.  325.  397,  et  seq.,)  requires  that  all,  materially  interested  in 
the  subject  and  objecfof  the  suit,  must  be  brought  in  as  parties.  But 
the  rule  was  made  by  the  court  to  promote  justice,  and  may  be  modi- 
fied for  the  like  purpose.  •Elmendorffv.  Taylor,  10  Wheat.  152.  It 
is  one  of  convenience  and  discretion,  and  is  held  by  the  courts  of  the 
United  States,  as  not  universally  applicable  to  cases  in  those  courts.  lb. 
Accordingly  the  rule  is  bent  to  prevent  as  far  as  possible,  a  failure  of 
justice.  "  It  IS  the  settled  practice  of  those  courts,  that  if  the  case 
can  be  decided  on  its  merits,  between  those  regularly  before  them,  to 
decree  as  between  them.  The  circumstance  that*  others,  not  within 
their  jurisdiction,  may  be  collaterally  or  incidentally  concerned,  who 


S.    I.]  MAY   BE    EXHIBITED.  34 

must  have  been  made  parties  had  they  been  amenable  to  its  process, 
shall  not  expel  other  suitors  who  have  a  constitutional  and  legal  rij^ht 
to  submit  tleir  case  to  a  court  of  the  United  States,  provided  the  de- 
cree may  be  made  without  affecting'  those  interests."     The  court,  per 
Ch.  J.  Marshall,  Vaitier  v.  Hinde,  7  Peters,  263—4.  252.     The  court 
will  require  the  plaintiff  to  do  all  in  his  power  to  bring  in  every  person 
concerned  in  interest.     But  if  the  case  may  be  completely  decided  as 
between  the  litigants,  the  circumstance  of  an  interest  in  some  one 
•whom  the  process  cannot  reach,  as  if  he  be  resident  of  another  state, 
will  not* prevent  a  decree  on  merits.     So  where  the  right  of  the  party 
before  the  court  do  not  depend  on  that  of  the  party  not  before  the 
court.     But  even  then,  if  practicable,  they  all  should  be  brought  in  on 
the  general  principle  to  avoid  multiplicity  of  suits,  and  have  the  whole 
matter  settled.     But  where  the  complainants  have  no  rights  separable 
from  and  independent  of  the  rights  of  persons  not  parties,  or  whose 
rights  lie  at  tlie  very  foundation  of  the  claim  of  right  by  the  plaintiffs, 
and  a  final  decree  cannot  be  made  between  the  parties  litigant  without 
directly  affecting  and  prejudicing  the  rights  of  others  not  made  parties, 
these  must  be  brought  in  or  the  bill  be  dismissed  ;  but  the  court,  in  lay- 
ing down  this  doctrine,  would  still  retain  the  cause,  (which  was  an 
injunction  bill,)  where  parties  required  it,  as  between  the  parties,  until 
the  plaintiffs  have  opportunity  of  litigating  with  the  other  parties  in  a 
competent  tribunal,  and  if  it  finally  appear  they  are  equitably  entitled 
to  the  interest  claimed  by  the  other  parties,  may  proceed  to  a  final  de- 
cree on  the  merits.     Mallow  v.  Hinde,  12  Wheat.  193;  6  Cond.  Rep. 
616 — 519, 520.     So  in  an  earlier  case,  where  it  was  held  that  the  inca- 
pacity of  the  circuit  courts  of  the  United  States  to  proceed  against  any 
person  residing  within  the   United  States,  but  not  within  the  district 
for  which  the  court  may  be  liolden,  justifies  them  in  dispensing  with 
parties  merely  formal ;  and  so  where  the  real  merits  may  be  determined 
•without  essentially  affecting  the  interests  of  absentees,  it  may  be  the 
duty  of  the  court  to  decree  as  between  the  parties  before  them ;  but 
where  absentees  are  essential  parties  to  the  merits  of  the  question,  and 
would  be  much  affected  by  the  decree,  the  court  will  not  proceed  to  a 
final  decision  until  they  are  made  parties,  even  though  some  of  them 
are  not  within  the  jurisdiction  of  the  court.     Nevertheless  the  court 
suggested  that  it  was  possible  the  essential  parties — who  were  as- 
signees of  insolvents — might  consent  to  make  themselves  parties,  and 
the  court  would,  instead  of  dismissing  the  bill  brought  to   hearing  for 
want  of  proper  parties,  give  leave  to  make  new  parties.     Russell  v. 
Clark's  Ex'rs.,  7  Cranch,  69—97;  2  Cond.  Rep.  426—7.     See  also 
Harrison  v.  Vrann,  1.  Story's  Rep.^  66.  64. 

The  extra-territorial  effect  of  a  judgment  or  decree  in  personam, 
against  a  non-resident,  and  not  served  with  process,  within  the  jurisdic- 
tion of  the  court,  or  who  docs  not  appear  voluntarily,  is  regarded  by 

4 


94  BY  WHOM  A  BILL  MAY  BE  EXHIBITED. 

the  state  courts  as  inoperative  out  of  thp  state,  or  purely  local.  By 
the  lex  loci  rei  sitcc,  property  of  such  person  may  be  made  subject  to 
the  jurisdiction,  so  as  to  render  the  judgment  or  decree  binding,  as  a 
proceeding  in  rem;  but  it  will  not  be  allowed  to  operate  in  personam 
in  the  courts  of  any  other  state.  The  question  has  been  decided  the 
same  way  in  nearly  half  the  states  of  the  union,  and  probably  no 
courts  of  any  state  have  held  such  a  proceeding  conclusive  upon  the 
rights  of  a  party  proceeded  against,  who  has  not  appeared  or  other- 
wise submitted  his  rights  to  the  decision  of  the  court  in  which  such 
•  proceedings  were  instituted.   'Bales  v.  Delavan,  5  Paige  Ch.  Rep. 

305 — 6,  and  cases  cited.  But  in  New  York  and  some  other  states,  (24 
Pick.  412,  Rule  8  in  Chancery,)  provision  by  legislation  and  rule  of 
court,  authorising,  in  lieu  of  actual  service  of  process  on  parties  be- 
yond its  jurisdiction,  publication  or  personal  service  of  an  order,  to 
appear  and  answer,  and  in  default,  that  the  bill  be  taken  as  confessed, 
[and  as  s,o  to  unknown  persons  having  an  interest  in  the  subject  matter, 
see  laws  of  New  York,  1831,  p.  243,  rules  174,  et  seq.  Hudsonv, 
TwiniiTg,  1  Taral.  315;  Ely  v.  Broughton,2  Sim.  &.  S.  188,]  obviates 
the  difficulty  of  making  them  parties,  and  renders  an  omission  so  to  do, 
less  excusable  than  where  for  want  of  such  legislation,  the  non-joinder 
of  parties  having  rights,  has  been  a  source  of  grievance  and  fraud. 
[Lord  Redesdale,  Giff'ord  v.  Hart,  1  Sch.  &  Lef.  386.] 

Where  such  provision  prevails,  the  English  rule,  so  far  as  charging 
the  fact  of  defendants  being  beyond  the  jurisdiction,  is  not  adopted. 
Otherwise  the  fact  is  stated,  and  then  the  court  proceeds  against  the 
parties,  and  if  the  disposition  of  the  property  is  in  the  power  of  the 
other  party,  the  court  may  act  upon  it.  Cruger  v.  Daniel  el  al.,  1 
McMullan  Eq.  C,  S.  Carolina,  190.  157. 


35 


CHAPTER    I. 

[33]     • 

Section  II. 

Of  the  several  kinds  and  distinctions  of  Bills. 

It  has  been  mentioned  in  the  introduction  that 
different  kinds  of  bills  are  used  to  answer  the  se- 
veral purposes  of  instituting  an  original  suit,  of  ad- 
ding to,  continuing,  or  obtaining  the  benefit  of  a 
suit  thus  instituted,  of  instituting  a  cross-suit,  of  im- 
pugning the  judgment  of  the  court  on  a  suit  brought* 
to  a  decision,  and  of  carrying  a  judgment  into  exe- 
cution. The  several  kinds  of  bills  have  been  usu- 
ally considered  as  capable  of  being  arranged  under 
three  general  heads :  I.  Original  bills,  which  re- 
late to  some  matter  not  before  litigated  in  the  court 
by  the  same  persons  standing  in  the  same  interests. 

II.  Bills  not  original,  which  are  either  an  addition 
to,  or  a  continuance  of,  an  original  bill,  or  both. 

III.  Bills,  which,  though  occasioned  by  or  seeking 
the  benefit  of  a  former  bill,  or  of  a  decision  made 
upon  it,  or  attempting  to  obtain  a  reversal  of  a  de- 
cision, are  not  considered  as  a  continuance  of  the 
former  bill,  but  in  the  nature  of  original  bills.  And 
though  this  arrangement  is  not  perhaps  the  most 
perfect,  yet,  as  it  is  nearly  just,  and  has  been  very 
generally  adopted  in  argument,  and  in  the  books  of 
reports  and  of  practice,  it  will  be  convenient  to  treat  36 
of  the  different  kinds  of  bills  with  reference  to  it. 


36  THE    SEVERAL    KINDS  [ChAP    I. 

[34]  I.  A  bill  may  pray  relief  against  an  injury  suf- 

ngmai  bi  s.  ^^^^^^  ^j.  Qj^jy  ggek  the  assistaiicc  of  the'  court  to 
enable  the  plaintiff  to  defend  himself  against  a  pos- 
sible future  injury,  or  to  support  or  defend  a  suit  in 
Those  which     a  court  of  ordinary  jurisdiction.     Original  bills  have 

pray  rehei,  aie,  J   J  O 

therefore  been  again  divided  into  bills  praying  relief, 
and  bills  not  praying  relief.     An  original  bill  pray- 

"Ifbiu/  °"^'  "^S  relief  may  be,  1.  A  bill  praying  the  decree  or 
order  of  the  court  touching  some  right  claimed  by 
the  person  exhibiting  the  bill,  in  opposition  to  some 
right  claimed  by  the  person  against  whom  the  bill 

Misofinterpiea.  jg  exhibited.  2.  A  bill  of  interpleader,  where  the 
person  exhibiting  the  bill  claims  no  right  in  oppo- 
sition to  the  rights  claimed  by  the  persons  against 
.  whom  the  bill  is  exhibited,  but  prays  the  decree  of 
the  court  touching  the  rights  of  those  persons,  for 
the   safety  of  the   persons   exhibiting  the  bill  (1).. 

certiorari  bills.    ^    A  bill  praying  the  writ  of  certiorari  to  remove  a 

Those  which  do  cause  from  an  inferior  court  of  equity.     An  original 

not  pray   relief  i  •     /»  t         *      i   mi 

*etuate'testimo  ^^^^  ^^^  P^^J^^S  relief  may  be,  1.  A  bill  to  perpe- 
duco""  °^  tuate  the  testimony  of  witnesses.  2.  A  bill  for  dis- 
covery of  facts  resting  within  the  knowledge  of  the 
person  against  whom  the  bill  is  exhibited,  or  of 
deeds,  writings,  or  other  things  in  his  custody  or 
power. 
n.  Bills  not  on-      II.  A  suit  iiupcrfcct  in  its  frame,  or  become  so 

ginal.    Such  are  .  i  i       /»  •  i   i  i  i         •  i 

by  accident  before  its  end  has  been  obtained,  may, 

in  many  cases,  be  rendered  perfect  by  an  new  bill, 

^  which  is   not   considered  as  an   original   bill,  but 

merely  as    an    addition  to  or  continuance   of  the 

Supplemental     former  bill,  or  .botli.     A  bill  of  this  kind  maybe, 

(1)  [Bedell  v.  Hoffman,  2  Paige's  Rep.  199.] 


S.  II.]  OF     BILLS.  36 

1.  A  supplemental  bill,  which  is  merely  an  addition  37 

to  the  original.     2.  A  bill  of  revivor,  which  is  a        [^5] 
continuance  of  the  original  bill,  when  by  death  some  '  ^  °  '■e^i^or. 
party  to  it  has  become  incapable  of  prosecuting  oi* 
defending  a  suit,  or  a  female  plaintiff  has  by  mar- 

■       ^11  i/»  /»  •  1  rt     bills  of  revivor 

riage  nicapacitatcd  herseli  irom   sunig  alone.     S.  and  supplement. 
A  bill  both  of  revivor  and  supplement,  which  con- 
tinues a  suit  upon  an  abatement,  and  supplies  de- 
fects  arisen   from   some  event  subsequent  to  the 
institution  of  the  .suit  (1). 

III.  Bills  for  the  purposes  of  cross  litigation  of  J^"^^^'^"' /" rigf. 
matters  already  depending  before  the  court,  of  con-  ^l  ""'"*■  ^'"'^ 
troverting,  suspending,  avoiding  or  carrying  into  exe- 
cution a  judgment  of  the  court,  or  of  obtaining  the 
benefit  of  a  suit  which  the  plaintiff  is  not  entitled  to 
add  to  or  continue  for  the  purpose  of  supplying  any 
defects  in  it,  have  been  generally  considered  under 
the  head  of  bills  in  the  nature   of  original  bills, 
though   occasioned   by  or  seeking  the  benefit   of 
former  bills  :  and  maybe,  1.  A  cross-bill,  exhibited  crossbiiu, 
by  the  defendant  in  a  former  bill,  against  the  plain- 
tiff in  the  same  bill,  touching  some  matter  in  litigation 
in  the  first  bill.     A  bill  of  review,  to  examine  and  biiu  of  review, 
reverse    a   decree   made    upon  a  former  bill,  and 
signed  by  the   person  holding  the  great   seal,  and 
enrolled, whereby  it  has  become  a  record  of  the  court  bins  in  the  na- 
(2).  3.  A  bill  in  the  nature  of  a  bill  of  review,  brouofht  revtw. 

^  '  .     o         ijjiig  tg  impeach 

by  a  person  not  bound  by  the  former  decree.     4.  A  {,^^^"''°  ""^ 
bill  to  impeach  a  decree  upon  the  ground  of  fraud.  5.  or"avoid"l''d?- 
A  bill  to  suspend  the  operation  of  a  decree  on  special 
circumstances,  or  to  avoid  it  on  the  ground  of  mat- 

(1)  [WestcoHv.  Cady,  5  Johns.  Ch.  Rep.  337.] 

(2)  [  Wiser  v.  Blachley  and  o'.hers,  2  lb.  488.] 


37  FRAME  AND  END  OF  THE  [ChaP.  I. 

dlcreeVto^xe*  ^^^  ariseii  subseqiicnt  to  it.  6.  A  bill  to  carry  a 
S8°  rsn  ^^^^^^  made  in  a  former  suit  into  execution.  7.  A 
bills  in  the  na-  bill  iu  the  naturB  of  a  bill  of  revivor,  to  obtain  the 

ture    of  bills  °^  ■,  ^  ^  ^  i 

revivor.  benefit  of  a  suit  after  abatement  m  certam  cases 

which  do  not  admit  of  a  continuance  of  the  original 

Si  ^f  ^s^upjie-  bill.  8.  A  bill  in  the  nature  of  a  supplemental  bill, 
to  obtain  the  benefit  of  a  suit,  either  after  abatement 
in  other  cases  which  do  not  admit  of  a  continuance 
of  the  original  bill,  or  after  the  suit  is  become  de- 
fective, without  abatement  in  cases  which  do  not 
admit  of  a  supplemental  bill  to  supply  that  defect. 


CHAPTER    I. 

Section  III. 

Of  the  frame  and  end  of  the  several  kinds  of  Bills^ 
and  of  Informations, 

^ree  classes  of  The  scvcral  kiuds  of  bills  have  been  already  con- 
sidered as  divided  into  three  classes.  In  the  first 
class  have  been  ranked  original  bills  ;  in  the  second, 
bills  not  original ;  in  the  third,  bills  in  the  nature 
of  original  bills,  though  occasioned  by  former  bills. 
The  frame  and  end  of  the  several  kinds  of  bills  will 
be  treated  with  reference  to  this  distribution,  and 
the  peculiarities  of  informations  will  be  considered 
under  a  fourth  head. 

I.  origiaai  bill*.      I.  Original  bills  have  been   mentioned  as  again 

divisible  into  bills  praying  relief,  and  bills  not  pray- 
ing relief. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  38 

Original  bills   praying  relief  have  been  ranked       [37] 
under  three  heads. — 1.  Orio^inal  bills  praving  the  ^9 

~  1         w        o  Division  of  origi- 

decree  of  the  court  touching  some  right  claimed  bv  "'^.l^'"*  praying 

o  O  «    relief. 

the  person  exhibiting  the  bill,  in  opposition  to  rights 
claimed  by  the  person  against  whom  the  bill  is 
exhibited.  2.  Bills  of  interpleader.  And,  3.  Cer- 
tiorari bills. — Bills  of  the  first  kind  are  the  bills 
most  usually  exhibited  in  the  court ;  and  as  the 
several  other  kinds  of  bills  are  either  consequences 
of  this,  or  very  similar  to  it  in  many  respects,  the 
consideration  of  bills  of  this  kind  will  in  a  great 
measure  involve  the  consideration  of  bills  in  general. 

1.  An  original  bill,  praying  the  decree  of^  the  ginai  wiu.'^  °"* 
court  touching  rights  claimed  by  the  person  exhi-  j'Jjf",^^;*^^^  ^^^^^ 
biting  the  bill,  in  opposition  to  rights   claimed  by  co!i^t^*=*  *'*^  ^''^ 
the  person  against  whom  the  bill  is  exhibited,  must 
show  the  rights  of  the  plaintiff,  or  person  exhibiting 
the  bill ;  by  whom,  and  in  what  manner,  he  is  in- 
jured ;  or  in  what  he  wants  the  assistance  of  the 
court ;  and  that  he  is  without  remedy,  except  in  a 
court  of  equity,  or  at  least  is  properly  relievable,  or 
can  be  most  effectually  relieved  there.    Having  thus 
shown  the  plaintiff's  title  to  the  assistance  of  the 
court,  the  bill  may  pray,  that  the  defendant,  or  per- 
sons against  whom  the  bill  is   exhibited,  may  an- 
swer upon  oath  (1),  the  matters   charged  against 
him  ;  and  it  may  also  pray  the  relief  or  assistance  and  pray  Buitabie 
of  the  court  which  the  plaintiff's  case  entitles  him 
to.     For  these  purposes  the  bill  must  pray,  that  a 
writ,  called  a  writ  of  subpcena,  may  issue  under  the  pan"^*"^  *^'*'" 

(1)  Unless  the  answer  on  oath  be  waived,  as  it  may  be  in  England 
by  special  order,  or  consent,  and  in  some  of  the  United  States,  by  legis- 
lative provision  and  general  rules  of  courts.     See  p.  10,  note. 


39  FRAME  AND  END  OF  THE    [ChAP.  I. 

great  seal,  which  is  the  seal  of  the  court,  to  require 

the  defendant's  appearance,  and  answer  to  the  bill, 

[^8]       unless  the  defendant  has  privilege  of  peerage,  or  is 

40  a  lord  of  parliament,  or  is  made  a  defendant  as  an 
OT  a  e  or  mis-  ^ji^^,^^.  of  tlic  crowu  (1).     lu  thc  casc  of  a  peer  or 

peeress,  or  lord   of  parliament,  the  bill  must  first 
pray  the  letter  of  the  person  holding  the  great  seal, 
called  a  letter  missive,  requesting  the  defendant  to 
appear  to  and  answer  the  bill  (a)  ;  and  the  writ  of 
subpcena  only  in  default  of  compliance  with  that 
findan*  fn  fhe  ^'^qucst.     And  if  thc   attorney-general  is  made  a 
torney-genlral'  dcfcndaut  as  au  officcr  of  the  crown,  the  bill  must 
Se?!'^*'^  ^  pray,  instead  of  the  writ  of  subpoena  (h),  that  he, 
being  attended  with  a  copy,  may  appear  and  put  in 
rif reu/r  ^^'^^"  SiU  auswor.     It  is  usual  to  add  to  the  prayer  of  the 
bill  a  general  prayer  of  that  relief  which  the  cir- 
cumstances  of  the  case  may  require ;  that  if  the 
plaintiff  mistakes  the  relief  to  which  he  is  entitled, 
the  court  may  yet  afford  him  that  relief  to  which  he 
has  a  right  (<?),  (2).     Indeed  it  has  been  said,  that 

(a)  This   mark   of  courtesy  .  is  in  not  members  of  the  House  of  Com- 

respect  of    peerage    generally,    see  mens,  see  Aet  of  Union  with  Ireland, 

Lord  Milsington  v.  Earl  of  Port-  39  and  40  Geo.  III.  c.  67,  art.  4,  and 

more,  1  Ves.  &.  B.  419  ;  and  is  to  be  Robinson  v.  Lord  Rokeby,  8  Ves.  601. 
observed  towards  Scotch  peers,  see         (h)  See  Barclay  v.  Russell,  Dick 

Act  of  Union  with  Scotland,  5  and  6  729  ;  S.  C.  3  Ves.  424. 
Anne,  c.  8,  .art.  23,  and  Irish  peers         (c)  Mollis  v.  Carr,2  Mod.  86. 


Set  off. 


(1)  See  note  (1),  p.  11. 
Frame  of  prayer.  (2)  Where  a  bill  prays  that  an  account  may  be  taken  of  the  deal- 
ings and  transactions  between  the  plaintiff  and  the  defendant,  who  has 
brought  an  action  against  the  plaintiff,  and  that  the  defendant  may  be 
decreed  to  pay  to  the  plaintiff  what  shall  appear  to  be  due  to.  him  upon 
taking  such  account,  the  plaintiff  being  ready  and  willing  to  pay  what, 
if  any  thing,  shall  appear  to  be  due  from  him  to  the  defendant,  the  court 
will  not  decree  a  set-off;  because  with  such  relief  the  relief  prayed 
for  is  totally  inconsistent  j  for  in  the  case  of  a  set-off,  the  defendant 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  41 

a  prayer  of  general  relief,  without  a  special  prayer 

of  the  particular  relief  to  which  the  plaintiff  thinks 

himself  entitled,    is  sufficient    {d)  \    and  that   the 

particular  relief  which  the  case  requires  may,  at 

the  hearing,  be  prayed  at  the  bar  (e).     But  this      [39] 

relief  must  be  agreeable  to  the  case  made  by  the  nfSe"a^eet 

bill  (/)  (1),  and  not  diffi3rent  from  it  (^)  (2);  and  made  by  the  mil 


{d)  See  Cooh  v.  Martyn,  2  Atk.  3.  Sch.   &  Lefr.   10.  729  ;    3   Swanst. 

The  report  of  this  case  is  app;uent!y  208,  note.      {English  v.  Foxall,  2 

very  inaccurate.      See    1    Eden.   R.  Peters,  595.) 

26  ;  11  Ves.   574.     [See  Johnson  v.  {g)  2  Atk,  141  ;   3  Atk.   132;  1 

Johnson,  1  Munf.  549.]  Ves.  Jr.  426;  2  Ves.  299;  Birch  v- 

(e)     See    Wilkinson    v.    Beal,   4  Coriin,  9  Dec.  1784,  in  Chan., 1  Ves. 

Madd.  408.  Jr.  426  ;  Lord  Walpole  v.  Lord  Or- 

(/)  Beaumont  v.  Boultbee,  5  Ves.  ford,  3  Ves.  402 ;  Palk  v.  Lord  Clin- 

485  ;  Hiern  v.  Mill,  13  Ves.  114  ;  2  ion,  12  Ves.  48. 

would  not  be  ordered  to  pay  the  plaintiff  the  balance,  but  the  balance 
would  be  directed  to  be  applied  in  satisfaction  of  the  damages,  if  any 
which  the  defendant  would  otherwise  be  entitled  to  receive.  Rawson 
Samuel,  Cr.  &.  Phil.  161. 

(1)  The  plaintiff  may  have  such  relief,  under  the  prayer  for  general  Relief  under  tha 
relief,  as  the  statement  of  his  case  entitles  him  to  ask.  'j'^'t'i^Mwi  v.  ^ai^Jg^gf"' ^®°*' 
Columbine,  Taml.  135;  Meller  v.  Minel,  lb.  487. 

But  after  stating  certain  grounds  for  relief  in  the  bill,  he  cannot 
have  relief  upon  other  grounds  not  pointed  out  in  the  bill  ;  because 
that  would  be  a  surprise  upon  the  defendant.  And  hence  where  an 
equitable  mortgagee  seeks  relief  against  elegits  on  the  ground  of  fraud, 
no  relief  can  be  given  on  the  general  ground,  real  or  supposed,  that  an 
equitable  mortgage  has  priority  over  a  title  by  elegit  under  a  judgment 
subsequent  to  tlie  mortgage,  where  no  case  is  made  by  tiie  bill  for  re- 
lief on  that  ground  ;  although,  indeed,  there  is  a  charge  that  the  plain- 
tiff is  entitled  to  priority  in  respect  of  the  equitable  mortgage  over  the 
elegits,  and  a  prayer  corresponding  to  such  charge,  but  such  charge 
does  not  clearly  point  out  the  general  ground  above  mentioned  as  a 
ground  for  relief,  distinct  from  that  of  fraud,  so  as  to  entitle  the  plain- 
tiff at  the  hearing  to  ask  relief  upon  that  general  ground.  Whitworth 
V.  Gaug'iin,  Cr.  &.  Phil.  325. 

(2)  The  prayer  may  be  for  general,  specific  and  alternative  relief. 

Under  the  general  prayer,  particular  relief  may  be  had,  but  the  re- 
lief is  only  as  the  case  stated  and  proofs  sustaining  it  justify.  (Hob- 
son  V.  M'Arlkur,  16  Peters,  182.  195.  English  v.  Foxall,  2  Id.  695.) 
The  allegata  dind  probata  must  meet,  or  agree  with  reasonable  certain- 


41  FRAME  AND  END  OF  THE    [ChAP.  I. 

the  court  will  not  in  all  cases  be  so  indulgent  as  to 

ty.  (See  46,  note.  Smith  v.  Axtell  et  at,  Saxton's  Ch.  Rep.  New 
Jersey,  497 — 8,  et  seq.A^A.)  But  the  same  strictness  of  pleading  and 
proof  does  not  obtain  in  equity  as  at  law,  especially  where  defenda^it 
is  not  surprised.     (See  p.  45,  note,  infra  :  Hatcher  v.  Hatcher.) 

So  under  the  general  prayer,  though  a  prayer  for  specific  relief  be 
added,  as  is  usual,  yet  relief  inconsistant  with  the  relief  specially 
prayed,  if  consistent  with  the  case  and  proofs  may  be  granted,  provided 
the  defendant  be  not  surprised  or  prejudiced.  And  so  the  constitution- 
ality of  legislative  acts  may  be  brought  in  question,  and  relief  granted, 
under  the  general  prayer,  if  the  bill  be  properly  framed  for  such  pur- 
pose. (Smith  V.  The  Trenton  Delaware  Falls  Co. ,3  Green's  Ch.  Rep. 
New  Jersey,  510,  511,  605.)  [Wilkin  v.  Wi7/ctn,  1  J.  C.  Rep.  111. 
Cook  V.  Mancius,  6  lb. .89  ;  Allen  v.  Coffman,  1  Bibb.  459  ;  and  see 
Sheppard's  Ex'rs  v.  Starke,  3  Munf.  29  ;  and  note  to  1  Munf.  564  j 
Bailey  v.  Burton,  8  Wendell's  Rep.  339.] 

Bat  when  the  general  prayer  and  for  further  relief  is  in  the  coryunc- 
tiw,  for  example  :  "  that  the  assignment  may  be  declared  void,  and 
complainants  be  paid  out  of  the  assigned  property,  and  for  further  re- 
lief as  the  nature  of  the  case  requires."  Any  thing  in  addition  to  the 
specific  relief  prayed,  consistent  with  it  and  warranted  by  the  case 
made,  may  be  decreed  ;  but  not  any  relief  inconsistent  with  the  specific 
relief  prayed  for  can  be  had.  To  obtain  other  relief,  which,  though  in- 
consistent with  the  specific  relief  prayed,  would  be  justified  by  the 
equity  of  the  case  made,  the  prayer  should  be  in  the  disjunctive,  or, 
thus :  "  and  that  your  orator  may  have  such  additional  relief,  or  such 
other  or  further  relief  as  the  equity  of  the  case  may  require,  and  this 
court  may  adjudge  proper."  [The  leading  case  on  this  technical 
point  was  Colton  v.  Ross-,  2  Paige's  Ch.  Rep.  396 — 8 ;  sanctioned  and 
followed  by  cases  in  2  Edw.  V.  C.  R.  201.  281.  Dowdall  v.  Lenoxy 
Pleasants  v.  Glasscock,  1  Smedes  &  Marshall's  C.  Rep.  Mississippi} 
24,  25.  18.     Foster  v.  Cooke,  1  Hawk.  Rep.  509. 

[Where  three  kinds  of  relief  are  prayed  for  in  the  bill,  and  the  com- 
plainant is  entitled  to  one  of  them,  the  defendant  cannot  demur.  Wes- 
tern Ins.  Co.  of  Buffalo  v.  Eagle  Fire  Ins.  Co.,  1  Paige's  C.  Rep.  284. 

It  has  been  said,  that  the  court  will  not  grant  relief  which  is  without 
the  scope  of  the  complainant's  bill,  and  not  prayed  for  specifically. 
Jarmon's  case,  3  Monroe's  Rep.  119;  S.  P.  Withers  v.  Thompson,  lb. 
333.  But  this  observation,  it  is  presumed,  proves  nothing  :  for  no  re- 
lief can  be  granted  beyond  the  scope  of  the  bill,  nor  can  the  prayer  go 
further  than  such  scope.] 

The  same  technical  distinction,  in  the  form  of  the  prayer,  is  applied 
to  the  prayer  for  alternative  relief.     See  ne.xt  note. 


S.  III.]  SEVERAL    KINDS   OF  42 

permit  a  bill  framed  for  one  purpose  to  answer 
another,  especially  if  the  defendant  may  be  sur- 
prised or  prejudiced.  If,  therefore,  the  plaintiff  Bi^'ji'^^a  do«. 
doubts  his  title  to  the  relief  he  wishes  to  pray,  the 
bill  maybe  framed  with  a  double  aspect ;  that  if  the 
court  determines  against  him  in  one  view  of  the 
case,  it  may  yet  afford  him  assistance  in  another 
(/«)  (1).  Upon  an  information  by  the  attorney-ge-  Prayer  in  an  m- 
neral  on  behalf  of  a  charity,  the  court  will  give  the  *■ 

(A)  2  Atk.  325  ;  and  see  Perry  v.  Philips,  17  Ves.  173. 

(1")  Where  a  bill  is  filed  against  certain  members  of  a  club,  for  the  Prayer  for  pay- 
recovery  of  money  belonging  to  the  club,  and  it  prays  that  the  money  ™„°*  ',^ay*^. 
may  be  paid  to  the  plaintiff,  "  or  otherwise  as  the  court  may  direct ;"  rect." 
in  such  case,  if  it  ought  not  to  be  paid  to  the  plaintiff,  the  court  will 
take  care  that  it  is  paid  to  the  persons  who  ought  to  have  the  manage- 
ment of  it.     Richardson  v.  Hastings,  7  Beav.  323. 

If  a  bill  prays  relief  contingently  against  one  defendant,  only  in  the  Pray"  for  relief 
event  of  the  court  not  giving  relief  against  another  defendant,  it  is  de- 
murrable.    Seddon  v.  Connell,  10  Sim.  79. 

If  a  bill  by  the  directors  of  an  insurance  company  prays  that  a  policy  Want  of  offer  to 

may  be  delivered  up  to  be  cancelled,  or  that  the  compaay  may  other-  miums. 

wise  be  relieved  therefrom  in  such  manner  as  the  court  may  think  fit ; 

this  is  a  submission  to  the  judgment  of  the  court  as  to  the  terms  on 

which  the  relief  is  to  be  granted  ;  and  therefore  it  is  not  necessary  that 

the  plaintiffs  should  expressly  offer  to  pay  back  the  premiums  received 

on  the  policy.     Barker  v.  Wallers,  8  Beav.  92. 

Where  a  person  conveys  an  estate,  in  trust,  out  of  the   rents,  or  by  Want  of  offer  to 
"^  •'  ■'    rci^oem  priorm- 

a  sale  or  mortgage  thereof,  to  pay  a  debt,  and  afterwards  mortgages  it>  cumbrance. 

and  the  mortgagee  files  a  bill,  praying  an  execution  of  the  trusts  of  the 

prior  deed,  and  payment  of  the  prior  debt  in  the  first  place,  and  then  of 

the  mortgage  debt  due  to  himself;  the  bill  is  demurrable  for  want  of  an 

offer  to  redeem  the  prior  incumbrant^er,  or  to  pay  him  any  deficiency 

there  may  be,  in  case  the  sum  realized  by  the  sale  of  the  estate  should 

be  less  than  the  prior  debt.     Caie  v.  Foulks,  6  Law  J.  Ch.  Rep.  (N,  S.) 

206,  M.  R. 

Where  the  bill  is  for  specific  execution  of  contract,  providing  only 
for  valuation  of  land,  not  for  sale  or  payment  of  money  :  if  the  facta 
justify  prayer  of  any  such  relief,  the  bill  should  be  framed  with  a  double 
aspect.  For  we  have  seen  (p.  41,  note,)  that  under  tlie  general 
prayer,  the  court  gives  such  relief  only  as  the  case  stated  and  proofs 
sustaining  it  justify.     (Holison  v.  M' Arthur,  16  Peters,  182.  195. 

But  where  vendor  of  goods  recovered  judgment  against  vendee,  be- 


43  FRAME  AND  END  OF  THE     [ChAP.  I. 

proper  directions  as  to  the  charity,  without  regard- 
ing the  propriety  or  impropriety  of  the  prayer  of  the 
information  (i). 
^^Mtiee'^^^'^^       ^^'  persons  interested  in  the  subject  of  the  suit 
ought  generally  to  be  parties  (k)  (1),  if  within  the 

(t)   Att.  Gen.    v.  Jeanes,     1    Atk.         (A)  This  proposition,  although  ua- 

355  ;  1  Ves.  43.   72.  418  ;  Att.  Gen.  doubtedly  correct  in  relation  to  suits 

V.  Breton,  2  Ves.  426,  427  j  11  Ves.  for  relief,  Pawlet  v.  Bishop  of  Lon- 

247.  367  ;  2  Jac.  &  W.  370  ;  and  it  don,  2  Atk.  296  ;  Poore  v.  Clarke, 

seems  that  a  similar  observation  would  2  Atk.  515;  1  Ves.  Jr.  39;  7  Ves. 

in  some  instances  apply  upon  a  bill  563  ;  1   Meriv.  262 ;   3   Meriv.  512, 

filed  on  behalf  of  an  infant,  iS^a^fZ^on  has  been  said,   but   lipon  somewhat 

v.  Stapilton,!  Atk.  2 ;  and  see  £>«-  doubtful    authority,    not    to     apply 

rant  V.  Durant,  1  Cox,  58,  in  which,  where    discovery    alone    is    sought. 

on  reference  to  the  record,  it  appears  Sangosa  v.  E.  I.  Camp.  1    Eq.  Ca. 

that  the  daughter  was  an  infant.  Reg,  Ab.  170. 
Lib.  1783,  p.  192. 

fore  he  has  notice  of  a  fraud  in  the  purchase,  and  on  return  of  execu- 
tion unsatisfied,  files  a  judgment  creditor's  bill  under  the  law  and  prac- 
tice of  the  State  of  New-York,  he  cannot  therein  pursue  the  goods  or 
its  proceeds  in  the  hands  of  a  third  person,  on  ground  that  the  sale  was 
fraudulent  and  void.  Nor  is  it  the  proper  subject  of  a  bill  with  a 
double  aspect.     Lloyd  v.  Brewster  et  al,  4  Paige's  Rep.  540 — 1.  537. 

A  proper  case  for  a  bill  with  a  double  aspect  is,  where  the  complain- 
ant is  in  doubt  whether  he  is  entitled  to  one  kind  of  relief  or  another, 
upon  the  facts  of  his  case  as  stated  in  his  bill.  He  may  then  frame  his 
prayer  in  the  alternative  ;  so  as  if  the  court  decide  that  one  kind  of 
relief  is  not  proper,  he  may  still  be  entitled  to  obtain  any  other  relief 
to  which  he  is  entitled  under  the  other  part  of  the  alternative  prayer. 
(Ibid.  See  also,  CoUonv.  Ross,  2  Id.  396—8  ;  1  Johns.  Ch.  Rep.  Ill ; 
14  Johns.  Rep.  627  ;  1  Id.  529.)  [Foster  v.  Cooke,  1  Hawks.  Rep.  509.] 
But  his  prayer  concluding  for  general  relief,  should  be  in  the  di^^junc- 
tive,  or  (Ibid,  and  mite,  p.  41,  note.) 

So  where  complainant  is  entitled  to  some  kind  of  relief,  on  the  gene- 
ral facts  stated  in  his  bill,  if  the  nature  of  the  relief  he  is  entitled  to 
depends  from  the  existence  or  non-existence  of  a  particular  fact  or  cir- 
cumstance which  is  not  within  his  knowledge,  he  may  allege  his  igno- 
rance of  such  fact,  and  call  for  a  discovery  thereof.  And  in  such  case 
he  may  also  frame  his  prayer  in  the  alternative,  so  as  to  obtain  the 
proper  relief  according  as  the  fact  may  appear  at  the  hearing  of  the 
cause.     (Lloyd  v.  Brewster  et  al.,  4  Paige's  Rep.  540-1.  537  ) 

(1)  See  the  general  rule  more  fully  stated  and  illustrated,  p.  190. 
Note  on  Parties,  p.  397  ;  and  p.  34,  note. 


S.  III.]  SEVERAL   KINDS  OF  BILLS.  43 

jurisdiction  of  the  court  (Z)  (1).  Who  are  the  ne-  [40] 
cessary  parties  to  a  suit  will  be  considered  in  the 
next  chapter,  in  treating  of  demurrers  (2)  ;  but  if 
any  necessary  parties  are  omitted,  or  unnecessary 
parties  are  inserted,  the  court,  upon  application,  will 
in  general  permit  the  proper  alterations  to  be  made. 
The  cases  in  which  this  permission  is  usually 
granted,  and  the  terms  upon  which  it  may  be  ob- 
tained, will  be  more  particularly  the  subject  of  con- 
sideration in  th^  fourth  chapter. 
^    It  is  the  practice  to  insert   in  a  bill  a  general  ch^gl  of^com* 

,  ,  ,  .  -,    .       .  1-1  biuation. 

charge,  tliat  the  parties  named  m  it  combined  to- 
gether, and  with  several  other  persons  unknown  to 
the  plaintiff,  whose  names,  when  discovered,  the 
plaintiff  prays  he  may  be  at  liberty  to  insert  in  the  ^^ 

bill.  This  practice  is  said  to  have  arisen  from  an 
idea  that  without  such  a  charge  parties  could  not 
be  added  to  the  bill  by  amendment ;  and  in  some 
cases  perhaps  the  charge  has  been  inserted  with  a 
view  to  give  the  court  jurisdiction  (3).     It  has  been 

(I)  As  to  mode  of  framing  the  bill,     Wilki7)Son   v.    Beal,  4    Madd.  408. 
■where  a  defendant  is  out  of  the  ju-     But  see  ante,  p.  32,  note, 
risdiction,  see   1  Sch.  &.  Lefr.  240  ; 


(1)  Ante,  p.  33,  34,  and  note  post,  p.  190.  399. 

(2)  Page  177,  et  seq.,  190,  ei  seq. 

(3J  [Barton,  in  his  "  Suit  in  Equity,"  thus  remarks  upon  this  sen- 
tence :  "  It  becomesmetobow  to  that  gentleman's"  (Lord  Redesdale's) 
"  more  extensive  practical  knowledge  ;  but  I  confess  myself  unable  to 
*'  apprehend  what  species  of  cases  it  can  be  to  which  he  alludes.  All 
"  cases  of  confederacy  and  combination,  considered  simply  as  such,  ap- 
"pcar  to  be  equally  cognizable  in  a  court  of  law  ;  and  it  is  extremely 
"evident  that  a  mere  allogiition  of  confederacy  or  combination  in  a 
"  bill,  without  other  equitable  matter  to  support  it,  could  never  autlior- 
"  ize  a  court  of  equity  to  exercise  its  extraordinary  jurisdiction.  And 
"  in  the  case  of  a  peer  (which  further  rebuts  the  idea  of  its  being  re- 


44  FRAME  AND  END  OF  THE     [ChAP.  I. 

probably  for  this  reason  generally  considered,  that 
a  defendant  demurring  to  a  bill  comprising  persons 
whose  interests  are  so  distinct  that  they  ought  not 
to  be  made  parties  to  the  same  bill,  ought  to  answer 
the  bill  so  far  as  to  deny  the  charge  of  combina- 
tion. The  denial  of  combination  usually  inserted 
as  words  of  course  at  the  close  of  an  answer,  is  a 
[411  denial  of  unlawful  combination  ;  and  it  has  been 
determined  that  a  general  charge  of  combination 
need  not  be  answered  (in).  An  answer  to  a  charge 
of  unlawful  combination  cannot  be  compelled  ;  and 
a  charge  of  lawful  combination  ought  to  be  speci- 
fic to  render  it  material  (1).  For  where  persons 
have  a  common  right  tbey  may  join  together  in  a 
peaceable  manner  to  defend  that  right :  and  though 
some  of  them  only  may  be  sued,  the  rest  may 
contribute  to  the  defence,  at  their  common  charge 
(n)  :  and  if  on  the  ground  of  such  a  combination 
the  jurisdiction  of  a  court  of  equity  is  attempted  to 
be  sustained,  where  the  jurisdiction  is  properly  at 
the  common  law,  the  combination  ought  to  be  spe- 
cially charged,  that  it  may  appear  to  warrant  the 
assumption  of  jurisdiction  by  a  court  of  equity. 
From  whatever  cause  the  practice  of  charging  com- 
bination has  arisen,  it  is  still  adhered  to,  except  in 

45  the  case  of  a  peer,  who  was  never  charged  with 

(m)  See  Oliver  v.  Haywood,  1  (n)  See  Lord  Howard  v.  Bell, 
Anstr.  Exch.  Rep.  82.  Hob.  91. 

"  quisite  to  give  jurisdiction)  the  charge  of  combination  is  omitted." — 
P.  33. 

[The  charge  of  combination  is  often  omitted  in  amicable  suits.  Wy- 
att's  P.  R.  63.] 

(1)  [Where  a  particular  combination  is  charged,  a  particular  answer 
must  be  given  to  it.     Barii.  263.] 


S.  III.]  SEVERAL    KINDS    OF    BILLS.  45 

combining  with  others  to  deprive  the  plaintiff  of 
his  right,  either  from  respect  to  the  peerage,  or 
perhaps  from  apprehension  that  such  a  charge 
might  be  construed  a  breach  of  privilege  (1). 

The  riffhts  of  the  several  parties,  the  iniurv  com-  Necessary  con- 
plained  or,  and  every  other  necessary  circumstance, 
as  time,  place,  manner,  or  other  incidents,  ought  to 
be  plainly  yet  succinctly  alleijed.  Whatever  is  Mode  of  aiiega- 
essential  to  the  rights  of  the  plaintiff,  and  is  neces- 
sarily within  his  knowledge,  ought  to  be  alleged 
positively  (n),  and  with  precision  (o)  (2)  ;  but  the        [42] 

(ra)  It  has  been  determined,  upon  3  Ves.  343  ;    Mayor  of  London  v. 

demurrer,  that,  it  is  not  a  sufficient  Levy,  8  Ves.  398;  Carew  \.  John- 

allegation  of  fact  in  a  bill,  to  state  ston,  2  Sch.  &  Lefr.  280  ;  Albretcht 

that  the  plaintiff  is  so  informed.  Lord  v.  Sussman,  2  Ves.  &  Bea.  323; 

Uxbridge  v.  Staveland,  1  Ves.  56.  [Harding  v.  Hardy,  11  Wheat.  103  ; 

(0)  See  E.  I.  Comp.  v.  Henchman,'  Newkirk  v.  Willett,  2  J.  C.  413,  S. 
1  Ves.  Jr.  287  ;  Cressett  v.  Mytton,  C.  2  C.C.  E.  296.] 

3  Bro.  C.  C.  481;  Ryves  v.  Ryves, 

(1)  It  is  wholly  unnecessary,  and  it  is  therefore  the  practice  of  some 
draftsmen  to  omit  it.     See  page  50,  infra. 

(2)  Ttie  essential  statements  constitutintr  the  case  for  equitable  re-  Necessary  alle- 
lief,  have  their  foundation  in  what  is  denominated  the  stating  pari,  in  chargeV^ 
the  formal  division  of  the  bill ;  (49,  infra,)  which  is  to  sustain  also  the 

charging  part,  (p.  50,)  and  both  to  justify  the  Interrogatory  part  and 
prayer;  (p.  51 — 6,)  each  being  consecutively  dependant.  Neverthe- 
less, if  the  material  facts  are  specifically  averred,  there  appears  no 
positive  rule  that  they  must  be  in  the  stating  part,  and  formally  precede 
the  charging  part.  They  will  naturally,  however,  fall  into  the  former 
part.  See  authorities,  p.  49,  note.  Story's  Eq.  PI.  }  32  a.  (4th  ed.,) 
and  n.  (1).     But  see  Id.  ^  32,  33.  36,  and  n.  (3). 

[The  complainant's  equity  must  appear  in  the  stating  part  of  the 
bill.  Flint  v.  Rives,  3  Ves.  Jr.  343  ;  Norburyv.  Meade,  3  Bligh.  211  ; 
Macnamara  v.  Sweeiman,  1  Hogan,  29.  The  substance  of  a.  bill  must 
contain  ground  for  relief;  and  there  must  be  equity  in  the  case,  when 
fully  stated  and  correctly  applied  to  the  proper  parties,  sufficient  to 
warrant  a  decree.  Lyon  v.  Tallmadge,  1  J.  C.  R.  184  ;  and  see  Shep- 
herd v.  Shepherd,  6  Day's  Rep.  37  ;  and  Harding  v.  Hardy,  11  Wheat. 
103  ;  Hagthorp  v.  Hoolx,  1  Gill  &  Johns.  270.] 

Every  bill  must  contain  sufficient  matters  of  fact,  per  se,  to  maintain 


46  FRAME  AND  END  OF  THE   [ChaP.  I. 

claims  of  the  defendant  may  be  stated  in  general 


the  case,  so  as  the  same  may  be  put  in  issue  by  the  answer,  and  estab- 
lisiied  by  the  proof?.  Tiie  proofs  must  be  according  to  the  allegations 
of  the  parties  ;  and  if  the  proofs  go  to  matters  not  within  the  allega- 
tions, the  court  cannot  judicially  act  upon  them  as  a  ground  for  its  de- 
cision :  for  the  pleadings  do  not  put  them  in  contestation.  The  allegata 
and  probata  must  reciprocally  meet  to  conform  to  each  other.  (The 
court,  per  Story,  Justice  :  Harrison  et  ah  v.  Nixon,  9  Peters,  502,  [503.} 
483.     Boone  v.  Chiles,  10  Id.  177.) 

But  the  bill  is  not  only  a  pleading  for  the  purpose  of  bringing  before 
the  court  and  putting  in  issue  the  material  allegations  and  charges 
upon  which  the  complainant's  right  to  relief  rests,  as  in  a  declaration 
in  a  suit  at  law  ;  but  it  is,  also,  in  most  cases,  an  examination  of  the 
defendant  upon  oath,  for  the  purpose  of  obtaining  evidence  to  establish 
the  complainant's  case,  or  to  counter-prove  or  destroy  the  defence  which 
may  be  set  up  by  such  defendant  in  his  answer.  The  complainant 
may  therefore  state  any  matter  of  evidence  in  the  bill  or  any  collateral 
fact,  the  admission  of  which  by  the  defendant  may  be  material  in  es- 
tablishing the  general  allegations  of  the  bill  as  a  pleading,  or  in  as- 
certaining or  determining  the  nature  and  extent,  or  the  kind  of  relief 
to  which  the  complainant  may  be  entitled,  consistently  with  the  case 
made  by  the  bill ;  or  which  may  legally  influence  the  court  in  deter- 
mining the  question  of  costs.  {Hawley  et  al.  v.  Wolverton,  5  Paige's 
Rep.  523,  522.     3  Id.  606.) 

[So  far  as  the  bill  acts  the  part  of  an  examination,  it  must  state  all 
such  matters  of  inducement,  and  such  collateral  circumstances  as  may 
tend  to  extract  a  discovery,  or  which  may  raise  a  presumption  of  the 
truth  of  the  principal  statement,  even  if  denied  by  the  defendant. 
Lube,  241.  If  it  appears,  upon  the  complainant's  own  case,  that  he  is 
not  entitled  to  the  relief  prayed,  the  court  will  not  assist  him.  Stanley 
V.  Robinson,  1  Russ.  &  M.  527.J 

It  should  be  framed  to  meet  the  case.  The  cause  must  be  ultimately 
decided  secundum  allegata  et  probata.  Proof  is  not  enough  without  a 
suitable  allegation  to  allow  its  introduction,  as  allegation  would  not  be 
enough  without  proof.  (Barque  Chusan,  2  Story's  Rep.  469.  456.) 
Thus,  where  the  bill  set  up  title  under  a  will,  hut  relied  on  title  under 
codicils  not  alluded  to  :  the  bill,  it  has  been  held,  was  fatally  defective. 
{Langdon  v.  Godard,  2  Story's  Rep.  267.)  True,  the  allegata  and  pro- 
bata must  meet  with  reasonable  certainty,  and  it  may  be  as  important 
that  this  rule  be  adhered  to  substantially  as  in  a  court  of  law  :  accord- 
ingly where  complainant  set  out  an  agreement  in  hccc  verba,  without 
alleging  a  loss,  and  introduced  parol  evidence  of  the  contents  and  a 
purported  copy  of  the  original  before  the  Master,  the  rule  was  held  to 


S.    III.]  SEVERAL  KINDS    OF    BILLS.  46 

terms  ;  and  if  a  matter  essential  to  the  determina- 

apply ;  but  nevertheless,  the  court  would  not  reject  the  testimony  and 
turn  the  party  out  of  court,  but  would  permit  amendment  of  pleadings 
if  necessary,  especially  as  it  was  understood  that  the  object  of  the 
parties  was  to  get  at  the  merits;  and  as  "  even  if  the  proof  were  ad- 
missible," the  copy  could  not  be  introduced  as  secondary  evidence, 
without  first  showing  the  loss  of  the  original,  which  was  not  done,  the 
court  recommended  the  parties  to  consent  to  take  further  testimony  as 
to  the  loss.  (Smith,  AdftCx,  v.  AxLell  el  al.,  Saxton  C.  Rep.  New 
Jersey,  497 — 8,  el  seq.  494.)  The  true  principle  for  courts  of  equity 
should  be  that  which  secures  specific  relief  under  a  prayer  for  general 
relief,  provided  the  defcndanl  is  not  surprised  or  prejudiced,  (see  p.  41, 
note,  p.  42.)  The  same  strictness  of  pleading  and  proof  does  not  ob- 
tain in  equity  as  at  law.  On  bills  containing  often  a  variety  of  com- 
plicated detail,  it  happens  almost  daily,  that  a  case  is  made  out  differ- 
ent in  some  degree  from  that  stated.  The  only  rule  which  can  be  laid 
down  is,  that  the  court  will  see  that  defendant  is  not  surprised  by  a 
case  which  he  could  not  be  prepared  to  meet.  In  general,  when  evi- 
dence is  introduced  to  make  out  a  different  case  from  that  stated,  it 
should  be  objected  to,  if  not  at  the  moment  when  offered,  in  the  pro- 
gress of  the  cause ;  otherwise  it  will  be  deemed  waived,  and  the  court 
will  proceed  to  give  relief,  if  t!ie  evidence  makes  a  case  for  relief. 
{Hatcher  el  al.  v.  Hatcher  el  al.,  1  McMuUan's  Eq.  Cas.  South  Carolina, 
317.  311.  And  see  also,  Bank  of  the  U.  S.  v.  Beverly  el  al.,  1  Howard's 
Rep.  151.) 

[By  the  case  of  Edwards  v.  Masspy,\  Hawks'  North  Carolina  Re- 
ports, 359,  it  would  appear,  that,  although  a  bill  which  is  deficient  in 
matter,,  cannot  be  aided  by  the  defendant's  answer,  or  by  proofs  in  the 
cause,  yet  when  sufficient  matter  is  stated,  but  insufficiently  verified, 
the  want  of  sufficient  verification  may  be  suj)plied  by  proofs  or  admis- 
sions. The  title  to  the  assistance  of  a  court  must  be  exposed  by  the 
pleadings.  But  the  style  and  character  of  pleading  in  equity,  lias  al- 
ways been  of  a  more  liberal  cast  than  that  of  other  courts;  as 
mispleading  in  matter  of  form  there  has  never  been  held  to  prejudice 
-a  party,  provided  the  case  made  is  right  in  substance  and  supported  by 
.proper  evidence.  Williamson  v.  Carnan,  1  Gill  &.  Johns.  (Maryland) 
Rep.  184.] 

So  it  seems  the  allegations  and  admissions  which  are  a  species  of 
proof,  must  agree.  Tlie  bill  must  lay  the  foundation  for  any  specific 
relief.  Thus,  where  the  answer  is  broader  than  the  a!leg:itions  in  the 
bill,  and  although  such  parts  of  the  answer  as  are  not  responsive  to  the 
bill,  are  not  evidence  for.the  defendant ;  yet  where  counsel  on  both 
.sides  have  considered  the  facts  disclosed  as  beloni^ing  to  the  case,  and 

5 


47  FRAME  AND  END  OF  THE  [ChAP.  I- 

tion  of  the  plaintiff's   claims  is  charged  to  rest 

if  the  facts  in  the  answer  not  responsive  to  the  bill,  are  relied  on  by- 
complainant's  counsel  as  admissioiis  by  the  defendant;  he  is  entitled 
thus  far,  to  their  full  benefit. 

But  no  admissions  in  an  answer  can  under  any  circumstances,  lay 
the  foundation  for  relief,  under  any  specific  head  of  equity,  unless  it  be 
substantially  set  forth  in  the  bill.  (Jackson  v.  Ashion,  11  Peters,  248, 
229.)  Nor  can  complainant  make  a  new  case  or  departure  from  his 
allegations  by  special  replication.  He  should  amend  his  bill.  (7  Id. 
274.  252.) 

The  allegations  need  not  set  out  all  the  facts  in  detail,  which  are  to 
be  proved  ;  but  if  they  do  not,  they  must  contain  allegations  broad 
enough  to  cover  any  evidence  offered  before  it  be  admissible.  After 
that,  confessions  or  declarations,  or  documents,  or  cumulative  facts  are 
admissible  to  support  any  general  allegations  to  which  they  apply,  and 
Buch  general  allegations  are  alone  often  sufficient  to  render  the  intro- 
duction of  such  evidence  proper.  (Nesmilh  v.  Caheri,  1  Woodbury  & 
Minot  Rep.  44.  34.)  So  in  Smith  v.  Burnham,  2  Sumner's  Rep.  614,. 
et  seq.,  622,  et  seq.,  612,  it  is  held  that  defendant's  confessions,  conver- 
sations and  admissions  need  not  be  expressly  charged,  to  entitle  plain- 
tiff to  use  them  in  proof  of  facts  charged  and  in  issue.  But  see  Aus- 
tinv.  Chambers,  a.ndEarIe  v.  Pickin,  in  the  notes  of  the  English  edition,. 
added  to  the  present  note. 

[It  has  been  said,  that  facts  charged  in  a  bill,  and  which  are  within 
*  the  defendant's  knowledge,  are  to  be  taken  as  admitted  if  not  denied. 

Mitchell  V.  Maupiny  3  Monroe's  (Kentucky)  Rep.  185  ;  Ward  v.  Lewis, 
4  Pickering's  Rep.  218;  Gil/sonv.  Cre'.iore,  5  lb.  151.  This  would 
seem  not  to,  be  the  practice  in  the  State  of  New-York.  Brockway  v. 
Copp,  3  Paige's  Ch.  Rep.  539.  The  complainant  must  establish  them 
by  evidence.  lb.  And  the  practice  in  Virginia  is  the  same  as  in  New- 
York.  Coleman  v.  Lynes's  Ex'r,  4  Randolph's  Rep.  454.]  But  see- 
Dyelt  and  Wife  v.  Norlh  American  Coal  Co.,  20  Wend.  Rep;  in  Err. 
670 — 5.     An'e,  p.  3),  note,  and  p.  10,  note. 

So  it  is  said,  that  in  general  a  bill  is  not  evidence  against  the  plaintiff,. 
the  statements  being  attributed  to  the  counsel,  not  to  the  party.  But 
Chancellor  Johnston  (South  Carolina)  said  he  was  in  the  habit  of  ruling 
that  any  paper  S7gnf£^  by- a  party,  much  more  one  sioornta  by  him, 
is  good  as  his  statement.  (Coojer  v.  Day  in  Err.  1  Richardson's  Eq. 
Rep.  34.  26.     And  see  ante,  p.  10,  note,  p.  30,  note.) 

The  bill  should  set  forth  the  plaintitf 's  equitable  interest,  and  defen- 
dant's equitable  liability,  with  so  much  clearness,  certainty  and  par- 
ticularity, as  to  inform  the  defendant  of  what  he  is  to  meet,  and  upon 
what  facts  as  alleged  he  may  take, issue.  Though  th6  bill  should  be 
full  and  unambiguous  as  to  every  material  fact,  yet  it  must  avoid. 


S.  III.]  SEVJERIL  KINDS  OF  BILLS.  47 

in  the  knewledge  of  the  defendant,  or  must  of 

needless  prolixity  and  repetition,  impertinent,  scamialous  and  niultifa- 
rious  matter;  as  to  all  which, see  pp.  49,  50,  57  n.,  58  n.,  208.  These 
and  the  further  requisites  of  a  j;ood  bill,  as  decided  on  demurrer,  will 
appear  under  that  liead  in  the  text,  p.  j31,  et  seq.  Their  appropriate 
place  mig-ht  have  been  under  the  head  of  bills,  and  such  seems  to  have 
been  the  view  of  Mr.  Story,  who  has  transferred  them  accordingly  in 
his  Treatise  on  Equity  Pleading. 

It  may  be  here  remarked,  that  every  claim  to  equitable  relief,  must 
rest  upon  some  existing  right,  not  only  to  the  thing  demanded,  but  to 
the  immediate  institution  of  a  suit  to  enforce  it:  a  suit  in  chancery 
be^jTg  the  equitaWo  demand  of  one's  right.  This  constitutes  the  plain- 
tiff's equitable  interest,  or  title  to  sue  for  relief.  The  existence  of 
such  right,  interest  or  title,  presupposes  a  relationship  or  privity  on 
the  part  of  the  person  sued — which  must  also  be  shown — for  if  defen- 
dant has  no  interest,  the  plaintiff  at  least  as  to  him,  has  no  right  or 
title. 

In  setting  forth  such  right  and  title,  the  governing  principle  is,  that 
so  much  certainty  must  pervade  the  statement  as  to  prevent  the  de- 
fendant from  being  taken  by  surprise.  He  must  be  permitted  to  know 
explicitly  what  the  co.nplaint  against  him  is — and  not  be  compelled  to 
guess  it,  under  the  form  of  a  general  charge.  There  must  be  such  a* 
specitication  as  will  enable  him  to  meet  the  alleged  fact  by  a  direct 
issue,  and  thereby  countervail  the  general  charge,  whether  it  be  of 
fraud,  mistake,  accident  or  trust.  But  after  alleging  such  specific  act 
or  fact,  the  plaintiff  need  not  set  forth  minor  circumstances,  merely 
going  to  make  out  or  corroborate  such  specification.  Some  English 
cases  have  gone  the  length,  however,  of  requirinir  minute  particulars 
time,  place  and  wiinesses'  names;  where  plaintiff's  claim  rests  on  de- 
fendant's confession  or  declaraiioiis.  Bat  this  was  under  the  peculiar 
secrecy  of  the  old  English  mode  of  examination  by  interrogatories- 
which  before  publication,  the  defendant  had  no  opportunity  of  coun- 
teracting, and  hence  it  accorded  with  the  principle  of  preventing  sur- 
prise as  stated.  But  the  doctrine  nor  the  reason  does  not  prevail  in 
j^his  country.  Here  the  received  jieneral  rule  is,  that  matters  consti- 
tuting the  evidence  of  the  specific  fact,  need  not  be  stated,  though  it 
maybe  sometimes  important*  to  elicit  an  examination  of  defendant  on 
oath,  to  set  out-and  interrogate  him  on  circumstantial  points  essential 
to  sustain  the  main  fact. 

The  statement  of  the  facts,  if  necesparily  known  by  plaintiff,  must, 
as  a  {leneral  rule,  be  p'siiive  and  prtcise.  But  in  New- York,  under 
the  old  rhancery  rogiuK^,  ficts  mijj;ht  be  set  forth  positively  or  on  in- 
formation or  belief,  and  the  jurat  corresponded.  But  now  by  the  Code 
of  Procedure,  (and  see  infra,  49,  note,)  they  are  to  be  stated  in  con- 
cise, ordinary  and  plainly  intelligible  language,  and  sworn  to  en  belief 


47 


FRAME  AND  END  OF  THE    [ClIAP.  I. 


Allegation  to 
Bhow  that  the 
statute  of  limi- 
tations had  not 
run  against  an 
equity  of  re- 
demptiou. 


Statement  or 
charge  in  a  bill 
to  obtain  an  in- 
terest accruing 
on  an  intestacy. 


Allegation  of  a 
title  by  descent. 


Allegation  that 
a  defendant  is  a 
representative 
of  a  firm. 


Allegation  as  to 
»  foreign  instru- 
ment being  v  oid. 


Statement  or 
charge  of  ad- 
missions, by  a 
defendant. 


necessity  be  witliin  his  knowledge,  and  is  conse- 

By  that  Code,  5  134.  neither  presumptions  of  law,  nor  matters  of  which 
judicial  notice  is  taken,  need  be  stated  in  a  pleading.  But  this  enact- 
ment is  merely  declaratory  of  the  pre-existing  law  on  the  subject. 
(See  Story's  Eq.  PI.  c.  2,  h  24.  Gresly,  Greenleaf  and  Phillips,  on  Evid.) 

I.   With  respect  to  a  tvant  of  svjficienl  farlicularity — 

Where  a  mortgage  debt  has  been  due  for  more  than  twenty  years, 
a  general  allegation  that  all  interest  has  been  paid,  is  not  sufficient  to 
support  a  proof  that  interest  was  paid  from  time  to  time,  during  the 
twenty  years,  so  as  to  prevent  tlie  statute  of  limitations  from  opera- 
ting ;  for,  consistently  with  the  trutli  of  this  allegation,  the  interest 
might  have  been  paid  in  a  lump.  Gregson  v.  Hindley,  10  Jur.  383. — 
V.  C.  E. 

Where  the  bill  is  brought  after  great  lapse  of  time,  it. should  state 
the  reasons  why  it  was  not  brought  before,  so  as  to  repel  the  presump- 
tion of  latches  or  improper  delay.  If  the  case  turns  upon  fraud,  mis- 
take, concealment  or  misrepresentation,  the  charges  thereof  must  be 
reasonable,  definite  and  certain  as  to  time,  occasion  and  subject  matter, 
and  especially  when,  how  and  what  the  discovery  of  the  fraud,  &c.  la, 
so  as  the  court  may  see,  if  by  ordinary  diligence  the  discovery  might 
have  been  made  before,  for  if  so,  the  bill  lies  not  on  account  of  latches. 
(^Stearns  v.  Page,  1  Story's  Rep.  214—215.  204.) 

If  a  bill  prays  that  the  trustee  of  leasehold  property  may  be  declared 
to  be  a  trustee  for  the  plaintiff,  as  claiming  through  a  person  to  whom 
it  accrued  by  an  intestacy,  the  bill  must  state  or  charge  that  the  intes. 
tate  did  not  dispose  of  or  incumber  the  property,  and  that  it  was  not 
applied  in  or  required  for  the  payment  of  his  debts.  See  Stephens  v. 
Frost,  2  Y.  &  C.  Eq.  Ex.  297. 

In  stating  a  title  by  descent  in  the  plaintiff,  it  is  necessary  that  all 
the  links  which  constitute  the  chain  of  descent  should  be  stated.  Baker 
V.  Harwood,  7  Sim.  373. 

An  allegation  that  a  defendant  is  the  representative  of  a  firm  is  not 
sufficient  to  admit  proof  of  circumstances  which  might  have  made  that 
party  not  only  a  representative,  but  actually  the  party  carrying'on  th6 
business.     Schneider  v.  Lizardi,  l5Law  J.  (N.  S.)  435,  M.  R. 

Where  a  foreign  instrument  is  intended  to  operate  according  to  a 
law  which  is  not  known  in  England,  and  which,  as  foreign  law,  is  to  be 
proved  as  a  fact  to  the  cause,  an  allegation. that  such  instrument  is 
void  is  too  vague.  The  Duke  of  Brunswick  v.  The  King  of  Hanover, 
6  Beav.  59. 

Where  a  plaintiff  means  to  rely  on  an  adm,issic)n  made  to  a  person 
whom  he  intends  to  examine  as  a  witness,  it  is  necessary  that  he  should 
state  or  charge,  not  merely  that  such  an  admission  was  made,  but  that 
it  was  made  to  that  person,  in  order  to  give  the  defendant  an  oppor- 
tunity of  cross-examining  such  person,  or  of  otherwise   meeting  the 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  48 

quently  the  subject  of  a  part  of  the  discovery- 
case  made  upon  the  evidence.  Austin  v.  Chambers,  6  CI.  &  Fin.  38.. 
And  where  a  plaintiff  proceeds  against  a  defer dant  upon  the  ground  of 
admissions  made  by  the  defendant  of  his  having  had  notice,  he  ought 
to  mention  in  the  bill  the  date  of  such  admissions,  and  the  names  of 
the  persons  to  whom  they  were  made,  in  order  to  give  the  defendant 
an  opportunity  of  meeting  the  case.  Earle  v.  Pickhi,  1  Russ.  & 
M.  547. 

Letters  proved  in  the  cause,  but  not  referred  to  in  the  pleadings,  are  Letters  and  con- 
inadmissible  in  evidence,  even  on  the  question  of  costs.      IVhitleyv.  put  in  issue. 
Martin,  3  Beav.  226. 

Conversations  not  put  in  issue   cannot  be  used  in  evidence.     But 

when  communications   are   stated  in  the  answer,  the  plaintiff'  has  a 

right  to  show  the  real  nature  of  those  communications,  although  th?y 

are  not  referred  to  in  the  bill.     Graham  v.  Oliv  r,  3  Beav.  124.     But 

see  Hvghes  v.  Garner,  2  Y.  «fe  C.  Eq.  Ex.  328. 

Where  a  bill  seeks  to  restrain  a  defendant  from  prosecuting  an  ac-  Aiie^tion  of  ac- 
quiescence in  a 
tion  for  a  damage  caused  by  a  nuisance,  and,  as  a  ground  for  such  re-  nuisance. 

lief,  it  alleges  that  he  acquiesced  in  and  encouraged  the  erection  caus- 
ing the  nuisance,  such  an  allegation  is  sufficient  to  let  in  evidence  of 
Buch  particular  acts  of  encouragement  as  would  amount  to  an  equity 
against  the  defendant ;  and  a  demurrer  for  want  of  equity,  on  account 
of  the  generality  of  the  allegation,  will  not  lie,  although  it  may  turn 
out  that  there  is  not  evidence  of  such  an  encouragement  as  will  con. 
Btitute  an  equity.      Williams  v.  Earl  of  Jersey,  Cr.  &  Phil.  9L 

Where  a  bill  charges  generally  that  there  are  errors  in  an  account, 
II.  .  .  r  .      .  •     .1         1    •         Chareing  error* 

and  that  they  appear  in  a  certam  report  oi  an  accountant  m  the  plain,   generally,  and 

tiff's  possession,  which  the  bill   calls  upon   the  defendant  to  inspect,  acco"n"t^in°  th^ 
but  it  does  not  specificallv  point  out  the  errors  ;  neitlier  that  report  nor  plaintiff's  poa- 

1    J      1  1  L     L      session. 

evidence  of  the  errors  pointed  out  in  it  can  be  recorded,  although  the 

report  is  stated,  and  the  alleged  errors  in  the  account  are  explained  in 

a  cross  bill  by  the  defendant.     Shejiherd  v.  Morris,  4  Beav.  252. 

Where  a  bill  impeaching  a  voluntary  settlement  on  the  ground  of  ^  , 
_,  r  ti  J  ,  r    1.      Reference   to  & 

the  indebtment  of  the  settlor,    does   not  state  the  particulars  of  the  schedule  in  tlie 

debts,  but  refers  to  a  schedule'  of  debts  in  the  Insolvent  Debtors'  Court, 

in  aid  of  the  suit;  the  existence  of  the    debts  is  not  sufficiently  put  in 

issue,  as  against  an  infant  or  a  married  woman,  but  an  inquiry  will  be 

directed  on  the  point.     Toumsend  v.  Westacott,  2  BL»av.  340. 

W.  ,\Vith  respect  to  the  mod:  of  putting  a  specific  allegation — 

A  statement  that  "  the  defendant  alleges,  and   the   plaintiff  believe     Allegation  of  be- 
the  fact  to  be,"  is  not  a  sufficient  allegation  of  a  material  fact.     Egre-  lief. 
mont  v.  Coivell,  5  Beav.  620. 

A  charjje  that  the  contrary  of  a  pretence  is  the  truth,  is  equivalent  charge  of  the 

.  r     ,  ■  r     .       r  t    1        ,  wT        ■  Contrary  ol  a 

to  an  allegation  of  the  negative  of  the  fact  pretended,     {ilarrison  v.  pretence. 
Willshire,  4  Law  J.  Ch.  Rep.  (N.  S.)  260.     (Lord  Commissioner  Shad- 


48  FRAME  AND  END  OF  THE    [ChAP.  I. 

sought  by   the  bill,    a   precise    allegation    is    not 
required  (^;)  (1). 

{p)  See  Baring  v.  Nash,  1  Ves.  &  Bea.  551.     (See  p.  42,  note,)  4  Paige's 
Rep.  540— 1.) 

weH.)     So  that  a  bill,  by  charging  the  contrary  of  a  pretence  that  a 
right  has  not  been  established  at  law,  sufficiently  avers  the  establish- 
ment of  the  right  at  law.     The  Mayor,  Aldermen,  and  Burgesses  of 
Rochester  v.  Lee,  15  Law  J.  Ch.  Rep.  (N.  S.)  97. 
Stating  a  tit'e  to       11"  a  bill  insists  that  a  will  was  a  good  execution  of  a  power  at  law, 
be  either  at  law  ^^jjj^  jf  j^qj^  j^  equity  ;  and  then  prays  that  the  defect,  if  any,  may  be 
'"^  '        supplied  against  the  defendant,  the  bill  is  demurrable:  for  the  court 

cannot  act  upon  an  hypothetical  bill,  desiring  relief  either  at  law  or  in 
e«f»iity,  according  to  the  result  of  the  argument.  Edwards  v.  Edwards, 
Jac.  335. 

III.    With  respect  to  the  rule  of  construction — 

Allegations  are  to  be  taken  most  strongly  against  the  party  making 

them.     Benson  v.  Hadfield,  5  Beav.  546. 

Allegation  of  a      And  hence,  in  order  to  charge  a  party  with  a  breach  of  trust,  it  is 

breach  of  trust,    ^jg^ggg^^y  ^jjj^j  jj^g  g^se  made  against  him  by  the  bill  should  be  siich 

as  to   be  incapable  of  being  construed  otherwise  than  as  a  case  of  a 

breach  of  trust     Attorney  General  v.  The  Mayor  of  Norivich,  2  My. 

&  C.  406. 

Alternative  alle-       Where  a  party  makes  alternative  allegations,  the  opposite  party  is 

gations.  entitled  to  adopt  whichever  of  the  alternative  allegations  he  pleases. 

Williams  v.  Flight,  5  Beav.  41. 
Aileeatiop  thata       Where  a  bill  of  discovery  is  filed  In  aid  of  an  action  of  covenant 

lessor  was"  seis-  ^hjcfi  could  not  be  sustained  unless  the  person  granting  the  lease  con- 
ed or  otherwise  "^         i    i      •  -i 
•well  entitled."     taining  the  covenant  had  the  legal  estate,  and  the  bill  states  that  such 

person  was  "  seised  or  otherwise  well  entitled,"  and  there  are  no  other 

expressions  showing  that  he  had  the  legal  estate,  the  defendant  has  a 

right  to  take  the  statement  most  against  the  pleader,  and  as  meaning 

that  tho,  lessor  was  "  otherwi  -e  entitled,"  or  had  an  equitable  title  only. 

Balls  V.  Musgrare,  3  Beav.  284.  * 

Construction  of       Allliougli  it  is  a  rule  that  an  allegation  is  to  be  taken  most  strongly 

oTword™*^'"^    asainst  the  pleader,  yet  where  a  word  may  per  se  be  understood  in  two 

'different  senses  with  equal  fairnes.-^,  and  if  understood  in  the  one  sense 

the  bill  would  be  demurrable,  whereas  if  understood  in  the  other  sense» 

the  bill  would  be  correctly  framed,  the  former  construction  will  be 

adopted  :  as  where  a  bill  for  tithes  is  filed  by  a  lessee  thereof  and  by 

the  vicar,  and  the  bill  states"  that  the  vicar  "  demised"  the  tithes  to  the 

lessee,  and  the  vicar  would   be  improperly  made  a  co-plaLiitiff,  if  the 

demise  were  by  deed,  but  not  if  it  were  by  parol.  Foot  v.  Bessanl,  3  Y. 

&  C.  Eq.  Ex.  320. 

(1)  If  a  bill  for  relief  is  so  vague  that  it  does  not  state  any  certain 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  49 

As  .a  bill  must  be  sufficient  in  substance,  so  it 
mustwliave  convenient  form  {q).     The  form  of  an  Pa-rta  "f  *  ^iu. 
original  bill  commonly  used  consists  of  nine  parts  ; 
— (1).     The  first  part  is  the  address  of  the  bill  to  Adareas. 
the  person  holding  the  great  seal,  the  terms  of 
which  are  always  prescribed   by  the  court  upon 
every  change  of  the  custody  of  the  seal,  or  altera- 
tion in  the  style  of  the  person  to  whom  it  is  com-  jf^n^e,  ^^3  ^g. 
mitted  (2).     In  the  second  place  are  contained  the  piZtlar  "^ '''^ 

iq)  9  Edw.  IV.  41.      Prac.  Reg.  57  Wy.  Ed. 

case  upon  whith  a.  court  of  equity  will  grant  relief,  it  will  be  demurra-  pj^j  demurrable 

b!e  for  want  of  equitv?  althoufjh  the  plaintiff  alleges  his  inability  to  for   vaguenea* 
■^  °  and  uncertainty, 

state  circumstances  more  definitely,  and  prays  a  discovery.     Wurmald 

V.  De  Lisle,  3  Beav.  18. 

Allegations  that  an  heir  was  brought  up  in  poverty  and  without  edu- 
cation, and  kept  in  ignorance  of  his  rights,  and  supplied  with  email 
sums  of  money,  are  too  vajue  alienations  of  fraud  to  support  a  bill  of 
discovery.  A  bill  so  framed  is  designated  a  fishing  bill.  Munday  v. 
Knight,  3  Hare,  497. 

(1)  [This  division  of  a  bill  into  nine  parts  is  considered  by  Lube  as 
"illogical  and  incorrect."  He  makes  only  four,  tiius:  1.  The  circum- 
stantial statement  of  the  relation,  including  the  inducement  or  introduc- 
tory part.  2.  The  incidents  which  produce  the  grievance  complained 
of,  including  the  requests  made  to  the  defendant,  and  his  refusal.  3, 
The  statement  of  such  collateral  circumstances,  if  necessary,  by  way 
of  charge,  as  may  compel  the  defendant  to  acknowledge  the  grievance, 
or  which  -may  anticipate  and  controvert  his  defence.  4.  And  lastly, 
by  reason  of  the  foregoing  complaint,  and  of  the  want  of  adequate 
remedy  at  common  law,  it  concludes  with  a  petition  for  the  subpoena, 
to  the  end  that  the  defendant  may  answer  the  premises  and  the  court 
decree  relief. — P.  242,] 

(2)  Ttie  forms  of  thij  commencement  as  well  as  every  other  parts 
of  bills  may  be  seen  in  Willis's  Eijuity  Pleidings,  Van  Hey Ihuy teen's 
Equity  Draftsman,  Barton's  Suits  in  Equity,  Barbour^s  and  other 
American  Books  of  Equity  Practice.  Story,  in  referring  to  the  forms 
of  address,  (Eq.  PI.  }  25,  n.  2,)  is  not  correct  in  saying  that  in  New- 
York  the  address  would  be  "  To  the  Honorable  J.  K."  &c.  By  express 
rules  of  the  court  of  chancery,  it  would  have  simply  been  "  To  the 
Chancellor  of  the  State  of  New-York,"  without  name  or  addition. 
But  since  the  abolition  of  that  court,  no  address  appears  necessary'. 
On  the  amalgamation  in  that  state  of  legal  and  equitable  forms  of 


49  FRAME  AND  END  OF  THE  [ClIAP.  T. 

names  of  the  parties  complainants,  and  their  de- 

. — ■ — ' — -, — K 

remedy,  pleadings  are  reduced  to  complaint,  demurrer,  answer  and. 
replication.  (Code  of  Procedure,  {  132.)  The  complaint  is  to  con- 
tain:  1.  "  The  title  of  the  cause,  speci/ying  the  name  of  the  court  in 
"  which  the  action  is  brought,  the  name  of  the  county  in  which  the 
"  plaintiff  desires  the  trial  to  be  had,  and  the  names  of  the  parties  to 
"the  action,  plaintiff"  and  defendant.  2.  A  statement  of  facts  constitu- 
"ting  the  cause  of  action,  in  ordinary  and  concise  language,  without 
"  repetition,  and  in  such  manner  as  to  enable  a  person  of  common  un- 
"  derstanding  to  know  what  is  intended.  3.  A  demand  of  the  relief,  to 
"  which  the  plaintiff  supposes  himself  entitled.  If  the  recovery  of 
"  money  be  demanded,  the  amount  thereof  shall  be  stated."  Code  of 
Procedure,  {120. 

Under  this  sweeping  reform  in  New- York,  the  necessity  of  adhering 
to  the  ni7ie  formal  divisions  of  Mitford,  or  the /our  of  Lube,  obviously 
disappears.  But  the  principles  of  pleading,  both  at  law  and  in  equity, 
are  in  many  instances  intimately  blended  with  the  very  foundation  of 
the  right,  the  enforcement  of  which,  and  the  redress  of  an  invasion  of 
which,  "is  the  very  object  of  the  complaint."  "No  rule  of  law  by 
which  rights  and  wrongs  are  measured,"  say  the  Commissioners  in 
their  report,  (p.  146,)  are  touched  "  the  change  being  only  the  removal 
of  old  obstructions,  in  the  way  of  enforcing  the  rights  and  redressing, 
the  wrongs."  Nevertheless,  in  the  determination  of  what  is  right  and 
wrong,  or  of  equitable  interests  and  liabilities,  as  well  as  for  a  concise 
and  plainly  intelligible  statement  of  facts,  it  may  be  conceived,  that  a 
knowledge  of  the  principles  that  have  governed  equity  pleading,  and 
the  substantial  portions  of  many  of  its  forms,  would  still  be  useful,  if 
not  indispensable  to  the  successful  framing  of  the  "complaint."  Many 
of  those  principles  evolve  a  practical  exposition  of  relative  rights,  and 
matiy  of  the  fonns  point  out  with  admirable  precision,  the  b^st  mode 
of  presenting  those  rights,  and  their  invasion,  to  the  judgment  of  the 
proper  tribunal.  But  mere  formal  outlines  of  a  bill  of  complaint, 
or  of  a  petition,  are  demolished;  and  the  structure  reduced  to  the 
simplicity  of  an  ancient  bill,  (of  which  see  a  precedent  note,  p. 
60,  infra  ;)  combining  but  little  more  than  a  clear  and  concise  state- 
ment of  facts.  Even  the  charging  part,  which  might  have  been  an 
important  part,  to  anticipate  the  defendant's  defence  and  put  him  to  an 
examination  on  oath,  in  respects  of  the  facts  charged,  may  now  be 
rendered  perhaps  entirely  unnecessary,  or  be  supplied  by  a  special 
replication  to  the  answer,  (Code  of  Procedure,  c.  4,  J  131  ;,  heretofore 
inadmissible,  but  by  leave  ;  and  by  the  power  of  either  party  to  exam- 
ine the  other  as  a  witness  ;  {Id.  Tit.  12,  c.  6,  {  343,  et  seq.,)  or  any 
other  person  interested  in  the  event  of  the  suit.     (Id.  c.  7,  5  351,  &.c.) 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  49 

scriptions  (r)  (1),  in  which  their  abode  is  particu- 
larly required  to  be  set  forth,  that  the  court,  and 
the  parties  defendants  to  the  bill,  may  know  where 
to  resort  to  compel  obedience  to  any  order  or  pro-  [43] 
cess  of  the  court,  and  particularly  for  payment  of 
any  costs  which  may  be  awarded  against  the  plain- 
tiffs, or  to  punish  any  improper  conduct  in  the 
course  of  the  suit  (2).  The  third  part  contains  the  stating  part. 
case  of  the  plaintiffs  (3),  and  is  commonly  called  the 

(r)  It  seems,  however,    that    the     the  truth  thereof,  see  Alhretcht  v. 
description,  so  given,  of.  a  plaintiff,  is     Suss7nan,  2  Ves.  &  Bea.  323. 
not  considered  to  be  an  allegation  of 

The  relief  is  granted  as  demanded,  if  no  answer  ;  otherwise  the 
court  will  grant  any  relief,  though  different  from  that  asked,  consistent 
with  the  case  made  by  the  plaintiff  and  embraced  within  the  issue. 
(Id.  5  231.) 

(1)  [See  the  different  forms  of  introduction,  names  and  descriptions 
in  Chapter  I.  of  Willis's  Equity  Pleadings,  and  Equity  Draftsman, 
Chap.  L 

(2)  By  the  ancient  practice  defendant  might  demur,  or  if  the  resi- 
dence was  untruly  stated,  plead.  But  the  modern  practice  is  to  apply 
for  order  for  security  for  costs.  But  whether  a  demurrer  lies,  the  court 
expressed  no  opinion,  though  1  Daniel  Ch.  Pr.  463,  is  cited  as  a  recent 
work  of  much  merit,  in  favor  of  a  demurrer.  (Howe  v.  Harvey,  8 
Paige's  Rep.  73 — 75.)  It  seems  that  Lord  Redesdale,  in  his  first  edi- 
tion of  this  Treatise,  said,  a  demurrer  would  hold  for  omitting  to  make 
the  proper  description  of  the  parties  as  to  abode,  &c.,  but  having  left 
it  out  in  after  editions,  it  is  inferred  that  he  had  "  changed  his  opinion." 
Story's  Eq.  PI.  c.  2,  J  26,  n.  1,  on  authority  of  Montague's  Eq.  PI. 
"If,"  says  Story,  "  a  special  demurrer  would  not  be  proper,  perhaps  a 
plea,  in  the  nature  of  a  plea  in  abatement,  might  be  the  proper  mode 
to  enforce  the  objection."  (lb.)  In  New-York,  by  the  recent  Code 
of  Procedure,  no  such  description  of  the  residence  of  parties,  seems 
to  be  required.     See  note,  supra. 

In  the  United  States  courts,  where  the  jurisdiction  depends  on  the 
citizenship  of  the  parties  being  of  different  states,  the  fact  of  the  com- 
plainant being  a  citizen  of  a  certain  state  and  the  defendant  of  another, 
must  be  alleged  in  the  bill.  See  Story's  Eq.  PI.  c.  2,  {  26,  and  authori- 
ties there  cited. 

(1)  There  is  no  rule  that  a  fact  on  which  the  plaintiff's  title  to  re- 


50  FRAME  AND  END  OF  THE    [ChAP.  I. 

Charge  of  con-  statlng-part  of  the  bill  (.s)  (2).  In  the  fourth  place 
is  the  general  charge  of  confederacy  against  the 
persons  complained  of,  which  has  been  already 
mentioned  as  commonly  inserted,  though  it  seoms 

charging-part.  unuecessary.  Fifthly,  if  the  plaintiffs  are  aware 
of  a  defence  which  may  be  made,  and  have  any 
matter  to  allege  which  may  avoid  it,  the   general 

(s)  See  11  V^s.  574. 


Introduction  of  lief  depends,  if  introduced  by  way  of  charge,  is  not  as  well  pleaded 
charging  part,  as  if  it  were  introduced  in  the  shape  of  what  is  technically  called  a 
statement,  where  sueh  charge  is  a  specific  averment  of  the  fact. 
Houghton  V.  Reynolds,  2  Hare,  264  ;  and  see  Harrison  v.  Wiltshire,  4 
Law  J.  (N.  S.)  260.  and  The  Mayor  of  Rochester  v.  Lee,  15  Law  Ch. 
R.  J.  (N.  S.)  97,  supra,  p.  47,  n.  and  p.  45,  note. 

(1)  It  has  been  held  that  the  rules  of  pleading  require  that  every 
mateiial  averment  tiiat  is  necessary  to  entitle  the  plaintiff  to  the  relief 
prayed  for,  must  be  contained  in  the  staling  pari  of  the  bill  ;  that  this 
is  a  useful  rule  for  the  preservation  of  form  and  ordet  in  the  pleadings ; 
that  this  pirt  of  the  bill  mu^t  contain  the  plaintiff's  case  and  his  title 
to  relief;  and  every  necessary  fact  must  be  distinctly  and  expressly 
averred,  and  not  in'  a  loose  and  indeterminate  manner,  to  be  explained 
by  inference,  or  by  reference  toother  parts  of  the  bill,  and  that  the 
defendants  are  not  bound  to  answer  any  averment  not  contained  in  the 
stating  part  of  the  bill.  Thus,  where  the  plaintiff  sought  to  hold  the 
purchaser  of  land  accountable  for  the  application  of  the  purchase  money, 
and  the  stating  part  of  the  bill  alleged  that  a  deed  of  the  land  was 
placed  in"  t'le  hands  of  D.  on  the  express  trust  and  condition  that  he 
should  nut  deliver  it  to  the  purchaser  but  upon  payment  of  one-half 
of  the  purchar^e  money,  which  D.  had  contracted  to  pay  over  to  the 
plaintiff,  and  that  the  deed  was  delivered  to  D.  the  purchaser  having 
knowledge  of  the  trust,  but  omitted  to  state  whether  the  purchaser 
did  or  <lid  not  pay  to  D.  one-half  of  the  money,  the  bill  was  hek)  to  be 
deftctive,  because  if  the  purchaser  did  pay  one-half  of  the  money,  he 
was  not  bound  to  see  to  its  application.  (^Wright  v.  Dime  et  ah,  23 
Piik.  Rep.  (Mass.)  59.  55.) 

The  foundation  for  subsequent  parts  of  tlie  bill  should  doubtless  be 
more  properly  laid  in  the  stating  part ;  but  that  no  substantive  aver- 
ment in  any  other  part  need  be  made  or  answered,  is  in  conflict  with 
other  adjudications.  See  English  editor's  note,  p.  49.  See  charg- 
ing part,  note,  infra.     And  ante  p.  45,  note. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  50 

charge  of  confederacy  is  usually  followed  by  an  al- 
legation that  the  defendants  pretend  or  set  up  the 
matter  of  their  defence,  and  by  a  charge  of  the 
matter  which  may  be  used  to  avoid  it.  This  is 
commonly  called  the  charging-part  of  the  bill,  and 
is  sometimes  also  used  for  the  purpose  of  obtaining 
a  discovery  of  the  nature  of  the  defendant's  case, 
or  to  put  in  issue  some  matter  which  it  is  not  for 
the  interest  of  the  plaintiffs  to  admit :  for  which 
purpose  the  charge  of  pretence  of  the  defendant  is 
held  to  be  sufficient  (f).  Thus  if  a  bill  is  filed  on 
any  equitable  ground  by  an  heir,  who  apprehends 
his  ajicestor  has  made  a  will,  he  may  state  his  title 
as  heU* ;  and  alleging  the  will  by  way  of  pretence 
of  the  defendant's  claiming  under  it,  make  it  a 
part  of  the    case  without  admitting  it  (1).     The 

(0  3  Atk.  626  ;  11  Ves.  575.     See  also  Flint  v.  Field,  2  Atistr.  543. 

(1)  To  examine  defendant  on  oath  for  the  purpose  of  discovery, 
(which  is  the  principal  object  of  exceptions  to  an  answer  for  insuffi- 
ciency, where  any  material  allegation,  charge  or  interrogatory  is  not 
fully  answered,)  the  complainant  may  even  anticipate  the  defence  of 
defendant  and  obtain  a  discovery  of  matters  connected  with  such  de- 
fence, which  are  in  no  wise  responsive  to  the  main  charges  in  the  bill, 
upon  which  the  complainant's  equity  is  supposed  to  rest.  The  proper 
method  of  obtaining  such  discovery,  however,  is  not  by  exceptions  for 
insufficiency  founded  upon  the  answer  alone,  but  by  framing  the  bill 
in  such  a  manner  as  to  call  for  all  the  particulars  of  the  defence, 
which  it  is  supposed  the  defendant  will  set  up.  This  is  effected  byQ? 
what  is  usually  called  the  charging  part  of  the  bill,  in  which  the  an- 
ticipated defence  is  stated  as  a  pretence  of  the  defendant,  supported 
by  proper  charges  and  interrogatories  founded  upon  such  alleged  pre- 
tence. In  tliis  way  complainant  is  not  only  enabled  to  anticipate  the 
defence  itself,  by  putting  other  matters  in  issue  which  will  have  the 
effect  to  displace  the  (quity  thereof,  but  he  is  also  enabled  to  examine 
the  defendant  on  interrogatories  in  relation  to  all  the  particulars  of 
such  defence.  (Stafford  v.  Brown,  4  Paige's  Rep.  90—1.  88.)  The 
charging  part  is  as  necessary  to  be  answered  as  the  stating  part ;  so 
far  as  the  charges  are  material  to  anticipate  and  defeat  a  defence 


50  FRAME  AND  END  OF  THE    [ChAP.  I. 

Allegation  of  ju-  sixtli  part  of  tliG  bill  is  intended  to  give  jurisdiction 

riediction.  n    i  •  i  i  i  i 

of  the  suit  to  the  court  by  a  general  averment  that 

which  may  be  set  up,  they  may  be  considered  in  the  nature  of  a  special 
replication.  But  complainant  has  the  same  right  to  defendant's  an- 
swer to  the  charging  part  of  the  bill,  to  prove  the  truth  of  his  special 
replication,  as  he  has  to  answer  to  the  stating  part  to  prove  the  truth 
of  that.  If  he  do  not  waive  answer  on  oath,  he  makes  defendant  a 
witness  in  favor  of  complainant  against  himself,  and  interrogates  him 
to  every  statement  and  charge  in  the  bill.  His  answer,  therefore^ 
which  is  responsive  to  any  such  statement  or  charge  in  whatever  part 
of  the  bill  it  is  contained,  is  evidence  in  his  own  favor,  as  well  as  in 
favor  of  the  complainant.  (Smith  v.  Clark,  A  Paige's  Rep.  373.  368.) 
But  if  not  responsive  it  is  not  evidence.  (Stafford  v.  Broivn,  Id.  91  ; 
see  on  this  point,  ante.  p.  10,  note.)  The  charging  part  has  been 
thought  by  many  to  be  mere  form,  and  that  they  might  put  in  any 
thing  by  way  of  charge,  even  in  a  sworn  bill.  It  is  frequently,  how- 
ever, as  material  a  part  of  the  bill  as  the  stating  part,  and  the  decision 
frequently  turns  on  the  issue  formed  by  the  denial  of  some  averment 
in  the  charging  part.  It  is  therefore  perjury  for  complainant  to  make 
a  false  charge  or  averment  in  the  charging  part  of  a  sworn  bill,-  as  it 
would  to  make  a  false  statement  in  the  stating  part.  (Smith  v.  Clark^ 
supra.) 

[See  a  precedent  of  such  an  allegation,  (as  the  one  suggested  in 
the  text,)  1  Equity  Dra'tsman,  (2d  edit.)  321.  The  charging  part  of 
a  bill,  says  Willis,  p.  19,  is  often  omitted.  Until  a  comparatively 
modern  period,  a  bill  contained  little  more  than  the  stating  part,  with  a 
simple  prayer,  that  the  defendant  might  answer  the  matters  contained 
in  it,  and  for  relief;  and  it  is  certain  that  the  late  Lord  Kenyon  in  the 
bills  he  drew  when  at  the  bar,  never  put  in  the  charging  part ;  which 
does  little  more  than  unfold  and  enlarge  the  statement.  See  Partridge 
V.  Haycraft,\\  Ves.  574 — 5. 

It  may  not  be  amiss  to  give  here  the  form  of  an  ancient  bill.  We 
copy  it  from  the  proceedings  of  the  Record  Commissfon.  It  was  filed 
in  the  reign  of  Henry  V.,  to  compel  a  defendant  to  surrender  a  mes- 
suage which  was  the  inheritance  of  tlie  plaintiff  Katharine.  The 
reader  will  perceive  in  how  small  a  compass  the  whole  is  contained  ; 
and  yet  how  completely  it  takes  in  the  equity  of  the  case  : 

"  To  the  reverend  father  in  God,  the  Bishop  of  Winchester,  Chancel- 

"  lor  of  England  : 

"  Beseecheth  humbly  your  poor  orator,  John  Bell  of  Calis,  soldier, 

"and  Katharine,  his  wife,  that  whereas  William  atte  Woode,  otherwise 

"  called  William  atte  Doune  of  Rochester,  father  to  the  said  Katha- 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  50 

the  acts  complained  of  are  contrary  to  equity,  and 
tend  to  the  injury  of  the  complainants,  and  that  they  [44] 
have  no  remedy  or  not  a  complete  remedy,  without 
the  assistance  of  the  court ;  but  this  averment  must 
be  supported  by  the  case  shown  in  the  bill,  from 
which  it  must  be  apparent  that  the  court  has  ju-  51 

risdiction  (1).  The  bill  having  shown  the  title  of  ^^eri^^'  ^ 
the  persons  complaining  to  relief,  and  that  the 
court  has  the  proper  jurisdiction  for  that  purpose, 
in  the  seventh  place  prays,  that  the  parties  com- 
plained of  may  answer  all  the  matters  contained 
in  the  former  part  of  the  bill,  not  only  according  to 

.. . -^ : 

"  rine,  since  dead,  heretofore  was  seised  in  his  demesne  as  of  fee  of 
"one  messu;ige  with  the  apjiurtenances  in  Rochester,  s^ituated  in  the 
"  churchyard  there,  the  whicli,  William,  in  the  feast  of  St.  Michael,  in 
"  the  twenty-second  year  of  the  reign  of  King  Richard  the  Second, 
"  since  the  conquest,  let  to  farm  to  one  Simond  Stelhard  of  Gillinghara, 
•'  the  same  messuage  with  the  appurtenance  for  term  of  seven  years 
"  then  next  ensuing,  for  a  certain  sum  to  him  annually  to  be  paid ; 
"  the  which  Simon  witiiin  the  first  two  years  was  ousted  by  the  execu- 
"  tors  of  the  said  William,  because  he  would  not  attorn  to  them  in  the 
"  payment  of  the  rent  of  the  same  messuage,  the  which  messuage 
"  since  ll)€n  was  several  times  alienated  to  divers  persons,  and  now  so 
"  it  is,  very  gracious  lord,  that  one  Piers  Savage,  now  occupier  of  the 
"  same  messuage,  for  the  which  messuage  he  hath  not  paid  more  than 
"one  mark,  hath  oftentimes  been  required  to  deliver  to  the  same  John 
"  and  Katharine,  this  same  messuage  as  tlie  heritage  of  the  same 
"  Katiiarine,  and  he  hath  not  delivered  it  to  them  nor  yet  will,  but  de- 
"  tains  it  in  destruction  of  their  poor  estate  and  perpetual  disherison  of 
"the  same  Katharine,  if  they  should  not  obtain  remedy  by  your  gra- 
"  cious  aid  in  this  behalf,  and  the  which  John  and  Katharine  are  so 
"  poor,  and  the  said  John  so  ill,  that  they  cannot  pursue  the  common 
"law.  Please  your  very  gracious  lordship  to  consider  the  premises, 
"  and  thereupon  to  grant  a  writ  directed  to  the  said  Piers,  to  aj)pear, 
"  before  you  at  a  certain  day  upon  a  certain  pain  by  you  to  be  limited, 
"for  to  answer  of  the  matter  aforesaid,  and  to  do  rigiit  as  good  con- 
"  science  demandoth  it,  and  tiiis  for  love  of  God,  and  in  work  of 
"  ciiarity."J 

(1)  The  remark  already  made  as  to  the    charge  of  combination 
(note  to  pajre  45')  is  also  applicable  to  the  jurisdiction  clause. 


51  FRAME  AND  END  OF  THE    [ChAP.  L 

their  positive  knowledge  of  the  facts  stated,  but  al- 
so according  to  their  remembrance,  to  the  informa- 
tion they  may  have  received,  and  the  belief  they 
are  unable  to  form  on  the  subject  (1).  A  princi- 
pal end  of  an  answer  upon  the  oath  of  the  defen- 
dants, is  to  supply  proof  of  the  matters  necessaiy 
to  support  the  case  of  the  plaintiffs  ;  and  it  is  there- 
fore required  of  the  defendants,  either  to  admit  or 
deny  all  the  facts  set  forth  in  the  bill,  with  their  at- 
tending circumstances,  or  to  deny  having  any 
knowledge  or  information  on  the  subject,  or  any 
recollection  of  it,  and  also  to  declare  themselves 

SgSingp'aS:  unable  to  form  any  belief  concerning  it  (2).  But 
as  experience  has  proved  that  the  substance  of  the 
matters  stated  and  charged  in  a  bill  may  fre- 
quently be  evaded  by  answering  according  to  the 
letter  only,  it  has  become  a  practice  to  add  to  the 
general  requisition  that  the  defendants  should  an- 
.swer  the  contents  of  the  bill,  a  repetition,  by  way 
of  interrogatory,  of  the  matters  most  essential  to  be 
answered,  adding  to  the  inquiry  after  each  fact  an 

52  inquiry  of  the  several  circumstances  which  may  be 

r451       attendant  upon  it,  and  variations  to  which  it  may 

be   subject,  with  a  view  to  prevent   evasion,  and 

compel    a   full    answer  (3).     This    is   commonly 


(1)  The  19th. order  of  Aug.  1841,  prescribes  the  form  of  this  part 
of  the  bill.     See  infra,  page  52,  note. 

(2)  Where  the  bill  requires  answer  to  pertinent  interrogatories,  ac- 
cording to  knowledge,  information  and  belief,  defendant  must  respond 
not  merely  to  his  knowledge,  but  information,  if  any,  derived  from 
others,  and  his  belief  which  all  of  his  knowledge  and  information  have 
produced.  (Kitiredge  v.  Claremont  Banketal.,  1  Woodbury  &.  Minot 
Rep.  Ct.  Court  of  U.  S.,  246—7.  244.) 

Object  of  partic-       (3)  Another  object  for  which  particular  interrogatories  are  put  is  to 
^ries."^''^"*^^''"    C'^11  ^^^e  matters  of  whi<;h  discovery  is  sought  to  the  remembrance  of  the 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  52 

termed  the  interrogating-part  of  the  bill  (1)';  and 

defendant,  where  he  might  otherwise  inadvertently  and  not  through 
■wilful  evasion,  state  that  he  was  unalile  to  afford  information. 

The  usuil  way  of  interrogating  as  to  a  document  in  a  bill,  is,  to  ask  Tnteiropatories 
generally,  whether  it  was  not  Tn  the  words  and  figures,  or  to  the  pur-  *^  t"  liocumeiits. 
port  and  effect  thereinbefore  in  that  behalf  mentioned  and  set  forth,  or 
in  some  other  and  what  words  and  figures,  or  to  some  other  and  what 
purport  and  effect  ?  But  if  the  defendant  says  he  is  unable  to  set  forth 
whether  it  was  to  the  purport  and  effect  stated,  or  to  what  other  pur- 
port or  effect ;  and  yet  it  is  «.  document  to  which  he  himself  was  a 
party,  or  of  the  purport  or  effect  of  which  it  is  probible  that  he  has 
some  knowledge,  it  may  often  be  expedient  to  amend  the  bill  by  in- 
terrogating him  step  by  step  as  to  particulars  expressed  in  the  docu- 
ment, in  order  to  direct  his  attention  to  each  point,  and  suggest  to  his 
mind  some  points  which  he  may  remember  when  thus  particularly  in- 
terrogated as  to  them.  In  Nelson  v.  P«n  ford,  A  Be-dV.y  Lord  Larjg- 
dale,  M.  R.  observed,  "  It  is  probable  that  tlie  defendant  knows  more 
than  is  stated  in  the  answer.  He  has  not,  however,  been  interrogaledj 
step  by  step,  as  to  the  rent  and  the  other  particulars  of  the  agree- 
ment  It  is  possible  he  may  be  able  to  answer  some  of  the  par- 
ticulars in  detail,  if  put  to  him  by  amendment. "  Although  the  al'ei^nta 
and  probata  must  agree,  and  the  premi.-es  or  case  made  in  the  stating 
and  charging  parts,  form  the  basis  of  the  interrogatories  and  of  relief, 
(see  p.  45,  note,)  yet  if  an  interrogatory  not  growing  out  of  \hii 
matter  stated  or  charged  be  answered,  and  the  answer  replied  to,  it 
cures  the  informality  and  puts  the  matter  in  issue  ;  "  for  a  matter  may  , 
be  put  in  issue  by  the  answer,  as  well  as  by  the  bill,  and  if  replied  to, 
eitiier  party  m^y  examine  to  it."  (See  authorities  quoted  by  Story, 
Eq.  PI.  '(:  3(3  and  n.  3,  supra,  p.  45,  note.) 

(1)  By  the  16th  order  of  August,  1841,  "  A  defendant  shall  not  be  Orders  of  An?> 

,  ,  ,  .,,.,,,  .  •,,       1841.  as  to  inter- 

bound  to  answer  any  statement  or  charge  in  the  bill,  unless  specially  rogatories  and 

and  particularly  interrogated  thereto ;  and  a  defendant  shall  not  be  lilwerThem!  *^ 
bound  to  answer  any  interrogatory  in  the  bill,  except  those  interroga- 
tories which  such  defendant  is  req  lired  to  answer  ;  and  wliere  a  de- 
fendant shall  answer  any  statement  or  charge  in  the  bill,  to  which  he 
is  not  in;errogated,  only  by  stating  his  ignorance  of  the  matter  so 
stated  or  charged,  such  answer  shall  be  deemed  impertinent." 

By  the  17th  order,  "  The  interrogatories  contained  in  the  interroga- 
ting pait  of  the  bill  shall  be  divided  as  conveniently  as  may  be  from 
each  other,  and  numbered  cunsecntively  1,  2,  3,  &c.,  and  the  interroga- 
tories which  each  defendant  is  required  to  answer,  shall  l.e  speciti>d  in 
a  note  at  tiie  foot  of  the  bill,  in  the  form  or  to  the  ellect  following  ;  that 
is  to  say — '  The  defendant  (A.  B.)  is  required  to  answer  the  iulerroga- 


53  FRAME  AND  END  OF  THE    [ClIAP.  I. 

as  it  was  originally  used  only  to  compel  a  full  an- 
swer to  the  matters  contained  in  the  former  part  of 

54  the  bill,  it  must  be  founded  on  those  matters  (u). 

(u)  1  Ves.  538  ;  6  Ves.  62  ;  Faulder  v.  Stuart,  11  Ves.  29G  ;  Bullock  v. 
Richardson,  11  Ves.  373 ;  11  Ves.  574. 

tories  numbered  respectively  1,  2,  3,  &c.,  and  the  office  copy  of  the 
bill  taken  by  each  defendant  shall  not  contain  any  interrogatories  ex- 
cept those  which  such  defendant  is  so  required  to  answer,  unless  such 
defendant  shall  require  to  be  furnished  with  a  copy  of  the  whole  bill." 

By  the  18th  order,  "  The  note  at  the  foot  of  the  bill  specifying  the 
interrogatories  which  each  defendant  is  required  to  answer,  shall  be 
considered  and  treated  as  a  part  of  the  bill,  and  the  addition  of  any 
such  note  to  the  bill,  or  any  alteration  in  or  addition  to  such  note  after 
the  billis  filed,  shall  be  considered  and  treated  as  an  amendment  of 
the  bill." 

By  the  19th  order,  "  Instead  of  the  words  of  the  bill  now  in  use 
preceding  the  interrogating  part  thereof,  and  beginning  with  the  words 
•  To  the  end  therefore,'  there  shall  hereafter  be  used  words  in  the  form 
or  to  the  effect  foUmving :  To  the  end,  therefore — That  the  said  defen- 
dants may,  if  they  can,  show  why  your  orator  should  not  have  the  re- 
lief hereby  prayed,  and  may,  upon  their  several  and  respective  corporal 
oaths,  and  according  to  the  best  and  utmost  of  their  several  and  re- 
spective knowledge,  remembrance,  information  and  belief,  full,  true, 
direct  and  perfect  answer  make  to  such  of  the  several  interrogatories 
hereinafter  numbered  and  set  forth,  as  by  the  note  hereunder  written, 
they  are  respectively  required  to  answer  ;  that  is  to  say — 

1.  Whether,  &c. 

2.  Whether,  «fcc." 

The  17th  order  of  August,  1841,  was  intended  to  apply  to  cases  in 
which  there  were  several  defendants  answering  separately.  Bate  v. 
Bate,  7  Beav.  528. 

And  this  order  does  not  require  a  number  to  be  prefixed  to  each  in- 
terrogatory, but  merely  that  the  various  portions  of  the  interrogating 
part  should  be  divided  and  distinguished  from  each  other  by  numbers, 
as  conveniently  as  may  be,  in  order  clearly  to  point  out  to  each  defen- 
dant what  part  of  the  bill  he  is  required  to  answer. 

And  where  a  defendant  is  required  to  answer  to  an  interrogatory  of 
a  specified  number,  he  must  answer  not  only  the  question  to  which  the 
number  is  immediately  prefixed,  but  all  others,  if  any,  that  may  come 
under  that  number,  or  ia  any  other  words,  all  others,  if  any,  that  inter- 
vene between  that  question  and  the  next  number.  Boutcher  v.  Brans- 
combe,  6  Beav.  541. 


S.  III.  SEVERAL   KINDS  OF  BILLS.  54 

Therefore,  if  there  is  nothing  in  the  prior  part  of 
the  bill  to  warrant  an  interrogatory  the  defendant 
is  not  compellable  to  answer  it :  a  practice  neces- 
sary for  the  preservation  of  form  and  order  in  the 
pleadings,  and  particularly  to  keep  the  answer  to 
the  matters  put  in  issue  by  the  bill.  But  a  variety 
of  questions  may  be  founded  on  a  single  charge, 
if  they  are  relevant  to  it  (?/)  (1).  Thus,  if  a  bill  is 
filed  against  an  executor  for  an  account  of  the  per- 
sonal estate  of  his  testator  upon  the  single  charge 
that  he  has  proved  the  will  may  be  founded  every 
inquiry  which  may  be  necessary  to  ascertain  the 

(y)  1  Ves.  318;  11  Ves.30L 

(1)  [And  see  notes  to  Jerrard  v.  Sanders,  4  Bro.  C.  C.  322.  (Eden's 
edit.)  At  first  view  the  repetition  of  the  whole  bill,  by  way  of  inter- 
rogation, would  appear  a  very  useless  prolixity.  But  experience  has 
proved  the  utility  of  this  practice,  beyond  cavil :  for  the  contrary 
method  would  not  fail  to  produce  still  greater  expense  and  delay  to 
the  parties,  by  occasioning  frequent  and  numerous  excepMons  and 
amendments.  Tjie  statement  must,  of  necessity,  be  direct  and  posi- 
tive ;  and  if  the  defendant  thought  it  his  interest  to  do  so,  he  might 
content  himself  with  answering  it  according  to  the  letter.  The  great 
object  of  the  interrogating  part  of  a  bill  is,  to  preclude  evasiveness  in 
the  answer;  and  the  whole  attention  of  the  draftsman  must  be  turned 
to  this  single  point  of  putting  the  question  in  every  variety  of  form, 
to  elicit  a  full  and  definite  reply,  and  to  prevent  the  defendant's  having 
any  loop-hole  to  escape  upon  a  negative  pregnant.  In  fact,  this  part 
of  the  bill  is  altogether  subservient  to  the  office  which  the  bill  performs, 
of  an  examination ;  and  should,  therefore,  omit  nothing  essential  to 
the  proof  and  elucidation  of  the  statement.     Lube,  271 — 2. 

A  defendant  is  not  bound  to  answer  interrogatories  asking  a  disclo- 
sure of  matter  no  way  connected  with  or  material  to  the  case.  Hag- 
thorp  v.  Hook,  1  Gil!  &.  Johns.  270.] 

In  Massachusetts  by  rule  of  cliancery,  the  bill  concludes  with  a 
general  interrofjatory.  But  complainant  may,  when  his  case  requires 
it,  propose  specific  interrogatories;  and  may  allege  by  way  of  charge 
any  particular  fact,  for  the  purpose  of  putting  it  in  issue.  Tiie  com- 
mon charge  of  fraud  and  comb  nation  are  omitted,  excepting  when 
intended  to  be  charged  specifically.     (Rule  4 ;  24  Pick.  Rep.  411.) 

6 


^  FRAME  AND  END  OF  THE     [ChAP.  I. 

amount  of  the  estate,  its  value,  the  disposition  made 
of  it,  the  situation  of  any  part  remaining  undisposed 
of,  the  debts  of  the  testator,  and  any  other  circum- 
stance leading  to  the  account  required  (1).     The 

Prayer  for  relief,  prayer  of  relief  is  the  next  and  eighth  part  of  the 
bill,  and  is  varied  according  to  the  case  made,  con- 
cluding always  with  a  prayer  of  general  relief,  at 

Prayer  for  pro-  tlic  discrction  of  the  court  (x)  (2).  To  attain  all 
the  ends  of  the  bill,  it,  ninthly  and  lastly,  prays  that 

55  process  may  issue  (y)  requiring  the  defendants  to 

{x)  Vide  sup.  p.  40.  Fawkes  v.  Pratt,  1   P.  Wms.  593;^ 

(y)  They  alone  are  defendants  and  Windsor  v.  Windsor,  Dick, 
against  whom  process  is  prayed.  See     707.  (3) 

(1)  [See  precedent,  Willis,  186.  Story's  Eq.  PJ.  J  37,  n.  4,  4th 
edit.,  thinks  the  proposition  in  the  text  "  is  stated  too  broadly,  and  that 
there  should  be  a  charge  not  only  that  the  executor  had  proved  the 
will,  but  that  he  had  received  assets,  in  order  to  found  the  interroga- 
tories."] 

(2)  [If  a  party  is  made  a  defendant,  and  no  relief  is  prayed  against 
him,  the  bill  will,  as  to  him,  be  dismissed.  JPalierson  v.  Same,  1 
Hayw.  167.] 

(3)  [A  person  does  not  become  a  party  merely  because  his  name  is 
mentioned  in  it.  By  the  English  practice,  the  plaintiff  may  complain 
and  tell  stories  of  whom  he  plea-es,  but  they  only  are  defendants  against 
whom  process  is  prayed,  issued  and  served.  And  see  Elmendorf  v. 
Delancey,  Hopk.  555  ;  Ex/^cutors  of  Brasher  v.  Van  Corllmd',  2  J.  C. 
R.  244;  Bond  v.  Hendricks,  1  Marsh.  5J4  ;  Windsor  v.  Wi'dsor,2 
Dick.  707;  Neve  v.  Wesfon,  3  Atk.  547  ;  Peach  v.  Venlner,  1  CW.  R. 
262  ;  Verplanck  v.  Mercantile  Ins.  Co.,  2  Paige,  438 ;  Lyie  v.  Brad- 
ford, 7  Monroe,  113.     In  the  state  of  New- York,  the  writ  of  subpoena 

is  issued  of  course  ;  and,  therefore,  a  formal  prayer  in  the  bill  is  not 
necessary  to  entitle  the  compl  linant  to  the  process  of  the  court.  But 
Btill  it  is  necessary  that  every  bill  should  clearly  display  the  persons 
who  are  impleaded  as  defendants.  Elmenlorf  v.  Delancey,  supra. 
Thus,  where  there  was  no  prayer  of  process  against  a  corporation  by- 
its  corporate  name,  but  only  against  the  offic  rs  thereof,  and  the  cor- 
poration was  not  described  in  the  bill  as  being  a  party  thereto,  it  waa 
held,  that  the  corporation  was  not  before  the  ^iourt  as  a  party  to  the 
Buit.     Verplanck  \.  Mercantile  Ins.  Co.  suirfl.^ 


S.  IIL]  SEVERAL  KINDS  OF  BILLS.  55 

appear  to  and  answer  the  bill,  and  abide  the  deter-       [46] 
mination  of  the  court  on  the  subject  ;.  adding,  in 
case  any  defendant  has  privilege  of  peerage,  or  is 
a  lord  of  parliament,  a  prayer  for  a  letter  missive 
before  the  prayer  of  process  ;  and  in  case  the  at- 
torney-general, as  an  officer  of  the  crown,  is  made 
a 'defendant,  the  bill,  as   before   observed,  instead 
of  praying    process    against  him,  prays  that  he 
may  answer  it  uponbehig  attended  with  a  copy  (1). 
For  the  purpose  of  preserving  property  in  dispute  fuSn^oV^' 
pending  a  suit,  or  to  prevent  evasion  of  justice,  the  7egno°^  ",*  **** 
court  either  makes  a  special  order  on  the  subject, 
or  issues  a  provisional  writ ;  as  the  writ  of  injunc- 
tion, to  restrain  the  defendant  from  proceeding  at 
the  common  law  against  the  plaintiff,  or  from  com- 
mitting waste,  or  doing  any  injurious  act  (z)  ;     the 
writ  of  ne  exeat  regno  to  restrain  the  defendant 
from  avoiding  the  plaintiff's  demands  by  quitting 
the  kingdom  (a)  ;  and  other  writs  of  a  similar  na- 

(z)  It  is  a  general  rule,  that  the  Casaviajor  v.  Strode,  1  Sim.  &  Stu. 

writ  of  injunction  will  not  be  granted  381 ;  Atnory  v.  Brodrick,  1  Jac.  Rep. 

unless  prajed  for  by  a  bill  which  is  530. 

already  filed,  Savory  v.  Dyer,  Ambl.         (a)    It   seems    requisite    tha£  the 

70,  or  under  special   circumstances,  writ  of    ne  exeat    regno    should    bo 

which  the  party  applying  undertakes  prayed  for  by  bill.     Anon.  6  Madd- 

to  file  forthwith.     M' Namara  v.  j4r-  276  ;  unless  the  application  be  made 

thur,  2  Ball  &  B.  349  ;  but  there  are  in  a  cause  depending.     Collinson  v. 

exceptions  to  this  general  rule,  see  ,  18Ves.353;  Moore  v. Hudson, 

Wrightv.  Atkyns,  I  Wea-ScB.  313;  6  Madd.    218;    see   further  ou  the 

In  a  late  case  in  9  Paige's  Rep.  the  English  rule  is  adhered  to,  that 
a  person  against  whom  process  of  subpcena  is  not  prayed,  although 
named  in  the  bill,  is  not  a  defendant  to  the  suit. 

(1)  Se6  note  to  page  11,  supra.  [See  forms  of  prayer,  Willis,  1; 
Equity  Draftman»  2d  edit,  6,  7.]  Suhpcena  between  state  and  state, 
is  directed  to  and  must  be  severally  served  on  the  Governor  and  Attor- 
ney Generil  of  the  defendant  sta'e.  (The.  S'ale  of  New  Jersey  v.  The 
FcQple  of  the  Slate  of  New-  York,  3  Peters,  46 1 .  Forms,  467—8,  n.  (a).) 


56  FRAME  AND  END  OF  THE   [ChAP.  I. 

[47]  ture.  When  a  bill  seeks  to  obtain  the  special  order 
of  the  court,  or  a  provisional  writ,  for  any  of  these 
purposes,  it  is  usual  to  insert,  immediately  before 
the  prayer  of  process  a  prayer  for  the  order  or 
particular  writ  which  the  case  requires  ;  and  the 
bill  is  then  commonly  named  from  the  writ  so  pray- 
ed, as  an  injunction-bill,  or  a  bill  for  a  writ  of  ne 
exeat  regno  (1).     Sometimes  the  writ  of  injunction 

subject  of  this  writ,  Hyde  v.  Whit-  605  ;  Graves  v.    Griffith,  1  Jac.  & 

field,  19  Ves.  342  ;  Raynes  v.  Wyse,  W.  646  ;  Blaydes  v.  Calvert,  2  Jac. 

2  Meriv.  472 ;  Flack  \.  Holm,  IJ&c.  &  W.  211;  Pannell  v.    Taylor,  1 

&    W.  405,   and  the   cases  therein  Tarn.  Rep.  96.     [Grant  v.  Grant,  3 

cited,  Leake  v.  Leake,  1  Jac.  &  W.  Russ.  598.] 


JVe  exBot  not 


(1)  A  ne  exeat  will  not  be  gcanted,  unless  prayed  for  by  the  bill,  at 
granted  unless  least  where  it  appears  that  the  plaintiff  at  the  time  of  filing  the  bill 
knew  that  the  defendant  intended  to  leave  the  kingdom.  Sharp  v. 
Taylor,  11  Sim.  50.  But  in  New- York  and  elsewhere,  it  has  been  re- 
garded as  not  indispensable,  that  this  process  should  be  prayed  for  in 
the  bill.  It  might  be  granted  on  cause,  or  petition  or  motion  after  bill 
filed.  And  more  particularly  where  plaintifT  had,  at  the  com- 
mencing of  his  suit,  no  reason  to  suppose  defendant  meant  to  depart. 
(See  the  cases  infra,  and  those  cited  by  Story  Eq.  PI.  J  44,  n.  2,  4th 
edit.)  The  writ  is  abolished  in  New-York,  a  simple  order  from  a  judge 
substituted.     See  Code  of  Procedure,  tit.  1,     1. 

[The  object  of  the  writ  of  ne  exeat  is  to  obtain  equitable  bail,  and  may 
be  applied  for  in  any  stage  of  the  suit.  In  Stewart  v.  Sleicart,  1  B.  & 
B.  73,  a  ne  exeat  was  granted  against  a  complainant  who  was  about  to 
leave  the  country  before  the  decree  for  costs  could  be  made  effect ual 
against  him.  Dunham  v.  Jackson,  1  Paige's  Ch.  Rep.  629 ;  Mitchell 
V.  Bunce,  2  lb.  606.  The  debt  for  which  the  writ  issues  must  be 
equitable,  (save  in  a  matter  of  account),  must  be  due,  and  must  be 
such  a  debt  that  the  snm  to  be  marked  upon  the  writ  can  be  ascertained. 
Boehm  v.  Wood,  1  Turn.  &  R.  332  ;  Seymmr  v.  Hazard,  1  J.  C.  R. 
1;  Porter  v.  Spencer,  2  lb.  169;  Smedburg  v.  Mark,  6  lb.  138; 
Mitchell  V.  Bunce,  supra.  To  sustain  the  application  for  a  writ  of  ne 
exeat,  sufficient  equity  must  appear  on  the  face  of  the  bill.  Woodward 
V.  Shatzell,  3  J.  C.  R.  412. 

It  seems  that  a  writ  of  Tie  exeat  is  not  granted  on  petition  and  motion 
only,  without  a  bill  being  previously  fi'ed.  Mattocks  v.  Tremain,  lb.  75. 
In  the  state  of  New-York,  the  writ  of  ne  e-xeat  is  not  a  prerogative  writ 
In  a  proper  case  this  writ  is  of  right,  and  not  discretionary.  Gilbert 
y.  Colt,  Hopk.  Rep.  496.] 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  56 

is  sought,  not  as  a  provisional  remedy  merely,  but 
as  a  continued  protection  to  the  rights  of  the 
plaintiff;  and  the  prayer  of  the  bill  must  then  be 
framed  accordingly. 

These  are  the  formal  parts  of  an  original  bill  as  Remarks  on  the 

.  insertion  of  the 

usually  framed.     Some  of  them  are  not  essential,  several  forego- 

•J  ing  parts. 

and  particularly  it  is  hi  the  discretion  of  the  person 
who  prepares  the  bill,  to  allege  any  pretence  of  the 
defendant,  in  opposition  to  the  plaintiff's  claims, 
or  to  interrogate  the  defendant  specially.  The  in- 
discriminate use  of  these  parts  of  a  bill  in  all  cases 
has  given  rise  to  a  common  reproach  to  practisers 
in  this  line,  that  every  bill  contains  the  same  story 
three  times  told(l).  In  the  hurry  of  business  it 
may  be  difficult  to  avoid  giving  ground  for  the  re- 
proach ;  but  in  a  bill  prepared  w\\h  attention  the 
parts  will  be  found  to  be  perfectly  distinct,  and  to  gy 

have  their  separate  and  necessary  operation. 

The  form  of  every  kind  of  bill  bears  a  resem-  Formofbrnsnot 

J  beine;  ordinary 

blance  to  that  of  an  original  bill  ;  but  there  are  ne-  °"8inaibiiii. 
cessarily  some  variations,  either  arising  from    the 

(1)  [See  Macnamara  v.  Sweelman,  1  Hogan,  29.] 
[The  framing  of  bills  is  usually  the  province  of  the  junior  counsel; 
it  is  of  great  importance,  and  requires  much  knowledge  and  judgment. 
In  no  other  science  is  so  much  expected  from  the  younger  members. 
In  all  perplexed  and  diflicult  questions,  it  is  prudent  to  have  the  opin- 
ion of  some  senior  counsel  upon  the  fitness  of  the  bill  for  its  intended 
purpose  ;  it  may  ultimately  save  much  expense  and  disappointment. 
1  have  heard  Lord  Eldon  jocosely  observe,  that  Lord  Tliurlow  thought 
a  machine  might  be  inventeil  for  the  drawing  of  bills.  But  in  this  sar- 
casm, that  great  judge  too  mucli  underrated  the  knowledge,  judgment 
and  exp°rience,  requisite  in  the  framing  of  bills  in  matters  of  impor- 
tance. With  more  truth  it  has  been  remarked,  "  fliat  the  mere  form 
"  of  bringing  a  question  before  a  court,  is  of  iiself  a  science,  an  art 
"  less  understood  and  more  difficult  to  learn,  than  the  construction  and 
"  use  of  the  most  complicated  machine,  or  even  the  motions  of  the 
"heavenly  bodies."     Maddock,  vol.  ii.  p.  167.] 


57  FRAME  AND  END  OF  THE         [ChAP.  I. 

purposes   for  which  the  bill  is  framed,  or  the  cir- 
cumstances under  which  it  is  exhibited  ;  and  those 
variations  will  be  noticed,  together  with  the  pecu- 
liarities attending  each  kind  of  bill. 
[48]  Every  bill  must  be  signed  by  counsel  {a)  ;  and 

ture-  it  it  contains   matter  criminal,  impertinent  (1),  or 

Bcandal  and  im-  ■'■                                  ■' 

pertinence. 

(a)  Dillon  \,  Francis,  Dick.  G8 ;  garded   as  a  security,  that,  judging 

French  v.  Dear,  5  Ves.  547  ;    2  Ves.  from  written  instructions  laid  before 

&  B.  358 ;     Kirkley   v.   Burton,  5  him  of  the  case  of  the  defendant  as 

Madd.  378,  note;   Webster  y.  Tlirel-  well  as  of  the  plaintiff,  there  appeared 

fall,    1    Sim.   &   Stu.    135  ;    Pitt  v.  to  him,  at  the  time  of  framing  it,  good 

Macklew,   1    Sim.  &  Stu.  136,  note,  ground  of  suit.    3d  June,  1826,  MSS* 

Lord  Eldou  declared  that  the  signa-  And  see  3  Ves.  501. 
ture  of  counsel    to  a  bill  is  to  be  re- 

ProliKity.  (1)  The  setting  forth  important  documents  verbatim  is  not  imperti- 

nence, but  if  unnecessary,  it  may  be  visited  in  costs.     Lowe  v.  Wil- 
liams, 2  S.  &  S.  674. 
Impertinence.  Although    it    is    not    necessary,  in  an    information   that  relators 

Statement  show.  g}^Qy|(j  j^ave  anv  interest  in  the  subject  of  the  suit,  yet  a  statement 

mg  the  interest  •'  ... 

of  relators.  showing  the  nature  of  their  interest  is  not  impertinent,  but  is  conve- 

nient, as,  in  the  event  of  the  infoimation  failing,  the  court  is  thereby 
enabled  to  make  the  parties  pay  the  costs  who  are  parties  beneficially 
interested  in  the  property.     Richards  v.  The  AUuniey  General,  12  CI. 
&  Fin,  30. 
Unnecessary  I"  Woods  v.  Woods,  10  Sim.  215,  the  bill  slated  that  a  will  in  which 

words.  there  were  several  words  mis-spelt,  was  "  in  the  words  and  figures 

hereunder  set  forth,  the  inditing  and  spelling  thereof  being  set  forth 
with  the  greatest  accuracy  ;  and  Sir  L.  Shadwell,  V.  C,  held  that  this 
preface  was  impertinent ;  and  that  it  would  have  been  sufficient  to  al- 
lege that  the  testator  made  his  will  "  as  follows :" — 

For  other  cases  on  this  subject,  see  note  to  original  page  [313], 
infra. 

"  The  word  impertinent  by  the  ancient  jurisconsults,  or  law  coun- 
"  sellors,  who  gave  their  opinions  on  cases,  was  used  merely  in  oppo- 
"  sition  to  pertinent — ratio  pertinens  is  a  pertinent  reason,  that  is,  a 
"  reason  pertaining  to  the  cause  in  question  ;  ajid  a  ratio  impertinenst 
"  an  impertinent  reason,  is  an  argument  not  pertaining  to  the  subject." 
D'Israeli's  2d  series  Curiosities  of  Lit.  vol.  ii.  p.  22. 

Impertinences  are  matters  not  pertinent  or  relative  to  points,  which, 
in  the  particular  stage  of  the  proceedings  in  which  the  cause  is,  can 
properly  come  before  the  court  for  decision. (  Wood  v.  Mann,  1  Sumner's 
R.  588,  678.) 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  5S 

scandalous,  such  matter  may  be  expunged,  and 
the  counsel  ordered  to  pay  costs  to  the  party  ag- 
grieved (h).  But  nothing  relevant  is  considered  as 
scandalous  (c)  (1). 

(fe)   Ord.    ill   Ch.    Ed.  Bea.  165.     1D4  ;  6  Madd.  252. 
Emerson  v.    Dallison,  1   Ch.  Rep.         (c)  2  Yes.  24;  15  Yes.  477. 

In  Hawhy  v.  Wolcerlon  5  Paige  R.  523,  522.  On  hearing  upon 
exceptions  to  masier's  report  on  exce[)tions  to  bill  for  impertinence,  the 
chancellor  held — that  in  determining  whether  the  allegation  or  state- 
ment in  a  bill  is  relevant  or  pertinent,  the  bill  must  be  viewed  not  only 
as  a  p'eading  but  as  an  examination  of  defendant  on  oath  ;  (of  which 
see  further  p.  45.  n  ite,)  and  where  any  allegation  or  statement  may  be 
material  in  establisiiing  the  general  allegations  of  the  bill  as  pleading  or 
in  ascertaining  or  determining  the  nature,  extent,  or  kind  of  relief  to 
which  complainant  is  entitled;  or  which  may  legally  influence  the 
court  on  the  question  of  costs,  such  allegation  or  statement  if  admitted 
by  defendant  or  established  by  proof,  is  relevant  and  cannot  be  excepted 
to  as  impertinent. 

A  few  unnecessary  words  in  a  bill  do  not  render  it  impertinent ;  as, 
where  the  allegation  is  one  which,  from  its  nature  cannot  be  put  in  issue 
and  proved,  as  where  the  separate  allegation  of  one  of  Complainants 
was,  that  if  he  had  owned  the  premises  in  his  own  right,  he  would  not 
have  had  certain  ornamental  trees  cut  down  for  $500.  In  such  a  case 
it  is  not  exceptionable  unless  the  irrelevant  passage  would  lead  to  the 
introduction  of  improper  evidence  by  putting  facts  in  issue  which  are 
foreign  to  the  cause  ;  or  where  the  irrelevant  matter  would  embarrass 
the  defendant  in  answering  the  bill.     (Idem.  625,  522.) 

(1)  Monlriou  v.  Carrick\  6  Jur.  97,  V.  C.  W, 

In  a  bill  impeaching  the  validity  of  a  will  on  the  ground  of  undue  Scandal  and  im' 
influence  over  the  testator,  exercised  by  a  female  who  takes  under  such  ?«"=»"*"*'='• 
will    an  allegation  that  prior  to  the  date  of  the  will  she  engaged  in  a 
criminal  connexion  with  him,  and  openly  cohabited  with  him  as  if  she 
had  been  his  wife,  is  nut  scandalous  or  impertinent.     Anonymous,  I 
Wy.  &,  C.  78. 

So,  if  in  a  bill  for  setting  aside  a  will  on  the  ground  of  fraud  and  un- 
due influence  practised  oif  the  testator  by  a  female,  there  are  allega- 
tions and  interrogatories  founded  thereon,  relating  to  her  cohabitation 
with  the  testator,  though  a  married  man,  they  are  not  scandalous  or 
impertinent,  as  they  relata  to  that  which  may  be  most  material  in  the 
chain  of  evidence  of  undue  influence.  Evans  v.  Oicen,  5  Law  J.  Ch. 
Rep.  (N.  S.)  74,  M.  R. 

In  a  bill  against  an  executor,  praying  for  a  receiver  and  an  injunc- 


58  FRAME  AND  END  OF  THE    [ChAP.  I. 

2.  Where  two  or  more  {d)  persons  claim  (^)  the 
same  thing  (2)  by  different  or  separate  interests  (/), 

59  and  another  person,  not  knowing  to  which  of  the 
claimants  he  ought  of  right  to  render  a  debt  or 
duty  (^g),  or  to  deliver  property  in  his  custody  (/i), 

(d)  Angel  V.  Iladden,  15  Ves.  244.  Paris  v.  Gilham,  Coop.  R.  5G  ;  Mar- 

(e)  See  2  Ves.  Jr.  107;  15  Ves.  iinius  v. //eZmuiA,  2  Ves.  &  B.  412 ; 
245;  Stevenson  V.  Anderson,  2  Yes.  (2d  edit.);  Morgan  v.  Marsack,  2 
&  B.  407;  Morgan  v.  Marsack,  2  Meriv.  107. 

Meriv.  107.  (g)   1  Eq.  Ca.  Abr.  80  ;  2  Ves.  Jr. 

(/)  And   this  may  be  where  the  310  ;  and  see  Farebrother  v.  Prat- 

claim  of  one  is  by  virtue  of  an  al-  tent,  1  Dan.   Exch.  R.    64 ;   Fare- 

leged  legal,   and  that  of    the  other  Irother  v.  Harris,  ibid.  68. 

upon    an    alleged    equitable     right,  (A)  This  will  not  extend  to  cases 

tion  against  the  receipt  of  the  assets  by  the  execntor,  on  account  of 

his  misconduct,  it  is  not  scanddlous  nor  impertinent  to  enter  into  mi- 
nute details  in  order  to  prove  that  the  executor  is  a  parson  of  drunken, 
violent,  and  disorderly  habits,  and  of  great  poverty  :  for  these  details 
as  evidence  of  conduct,  are  material  to  the  decree  asked  ;  and  the  court 
will  not  limit  the  number  of  instances  which  the  plaintifFmay  adduce 
for  the  purpose  of  strengthing  his  case.  Eieret  v.  Pryiherych,  6  Jur. 
3.  V.  C.  B. 

In  the  late  court  for  the  correction  of  errors  in  New-York,  on  affir- 
ming chancellor's  order  conforming  master's  report,  allowing  exceptions 
for  scandal  and  in)pertinence,  to  a  petition  of  stockholders  for  dissolu- 
tion of  a  company,  the  petition  having  charged  a  fraudulent  combina- 
tion between  a  stock  subscriber  and  the  company,  implicating  a  third' 
person  and  one  of  the  commissioners  of  stock  subscription,  it  was  held 
that  as  the  act  charged  in  the  petition  would  not  work  a  forfeiture  of 
the  corporation,  the  matter  was  impertinent,  as  well  as  scandalous, 
and  was  ordered  to  be  expunged.  The  court  say  that  the  names  of 
individuals  not  parties  to  the  proceedings  in  the  case,  ought  not  to  be 
introduced  in  an  offensive  and  discreditable  manner  in  the  petition  or 
pleading,  unless  the  matters  with  which  tliey  are  thus  connected  are 
material  and  pertinent  to  the  relief  prayed  for  ;  as  they  have  no  oppor- 
tunity for  explanation  or  vindication  from  the%.spersions  cast  upon  their 
characters.  Ordinarily,  even  where  the  matter  set  forth  involving  the 
acts  and  proceedings  of  persons  not  parties  to  the  record,  are  relevant, 
it  is  unnecessary  to  designate  their  names,  all  that  can  be  material  or 
important  to  spread  before  the  court  are  the  facts.  (King  d^  Prim& 
V.  Sea  Insurance  Co.  26  Wendell  Rep.  64,  62,  et  seq.) 

(1)   Glyn  V.  Duesbury,  11  Sim.  139. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  59 

fears  he  maybe  hurt  by  some  of  them  (i),  he  may      [49] 
exhibk  a  bill  of  interpleader  against  them  (/t)  (L).  of!°^"* 

of  bailment  where  the  parties  maybe  (i)    1  Eq  Ca.  Ab.  80.     [Morris  v. 

compelled  to  interplead  at  law.     See  Barc/ay,  2  J.  J.  Marsliall,  375  ] 

Langstin  v.  Boylston,  2Ves.  Jr.  lOl  ;  (k)  2  Eq.  Ca.  Ab.  173  ;  Cooper  v. 

I  Meriv.  405.     It  may  be  observed  ChUty,  1  Burr.   20,  and  see  ib.  37; 
that  he  must  not  himself  claim  any  Prac.  Reg.  78  ;  Wy.  Ed.     [Bednllv. 
interest  in  the  property  ;  Mitchell  v.  Hoffman,  2  Paige's  Ch.  Rep.  199.] 
Hayne,  2  Sim.  &  Stu.  63. 

(1)  It  is  essential  to  the  character  of  a  plaintiff  to  a  bill  of  inter-  want  of  interest 
pleader,  that  he  should  have  no  personal  interest.  Moore  v.  Usher,  ^^i]i'o]^^^rplot 
7  Sim.  383.  der. 

A  bill  is  not  sustainable  as  a  bill  of  interpleader,  where  it  raises  a.  Bill  of  intcrplea- 
question  between  the  plaintiff  and  one  of  the  defendants :  as  where  it  question  be- 
alleges  that  interest  on  a  sum  secured  by  a  policy  is  not  due  from  the  *"'?'^?  F  "d"^  l 
insurance  company  by  whom  the  bill  is  filed.     Bignold  v.  Audland, 

II  Sim.  24. 

The  complainant  must  show  that  he  is  in  the  situation  of  a  mere 
stakeholder,  having  no  personal  interest  in  the  controversy  betweea 
the  defendants,  and  that  their  respective  claims  Hf^ainst  liim  are  of  the 
name  nature  or  character.  He  cannot  sustain  the  s^uit  if  he  is  obliged 
to  put  his  case  upon  this — that  as  to  some  of  the  defendants  he  is  a 
wrongdoer.  Hence  a  sheriff  wlio  levies  on  property  claimed  by  a 
third  person,  cannot  file  a  bill  to  ccnpel  the  judgment  creditor  and  the 
owner  to  interplead,  instead  of  bringing  the  question  at  law  against 
the  sheriff  as  the  wrongdoer.  (Shaw  v.  Coster,  8  Paige's  Rep. 
344_6.  339.) 

Complainant  must  show  he  is  ignorant  of  the  rights  of  the  respec- 
tive parties  who  are  called  on  by  him  to  interplead,  or  at  least  that. 
there  is  some  doubt  in  point  of  fa:l  to  which  claimant,  the  debt  or  duty 
belongs,  so  as  he  cannot  safely  pay  or  render  it  to  one  without  ri?k  of 
being  made  liable  for  the  same  debt  or  duty  to  tlie  other.  (Ib.  347 — 8.) 
[The  mere  suggestion  of  a  doubt  as  to  who  is  entitled  to  money  due 
by  the  pjaintiff  is  not  sufficient.  Tabin  v.  Wilson,  3  J.  J.  Maisljall's 
Rep.  67.]  But  the  party  filing  not  being  a  claimant,  cannot  be  supposed 
to  be  able  to  set  out  the  claims  as  accurately  as  the  claimants  them- 
selves might.  It  is  enough  to  satisfy  the  court  there  are  opposing 
claims  against  which  he  in  equity  is  entitled  to  protection,  until  they 
are  settled  so  as  he  can  pay  with  safety.  The  court  is  liberal  to 
Btakelinlders  or  agents,  h:tving  no  inerest  in  the  property — on  the- 
principle  that  they  lave  right  to  prntection,  not  from  being  compelled 
to  pay,  but  from  the  vexation  att-nding  all  the  suits  tliat  may  possibly 
be  instituted  against  them.     The  bill  lies,  though  the  claim  of  one  de- 


59  FRAME  AND  END  OF  THE    [ClIAP.  I. 

In  this  bill  he  must  state  his  own  rights,  and  their 

fendant  is  at  law,  and  the  other  of  equitable  cognizance.  {Executors 
of  Lozier  v.  Adm'rs  of  Van  Sarin,  2  Green's  Ch.  Rep.  New  Jersey, 
329,  330.  325  )  S.  P.  [Richards  v.  Sailer,  ti  Johns.  Ch.  Rep.  4i5  ; 
bat  see  Barclay  v.  Curlis,  9  F^rice,  661.] 

Tiie  principle  adopted  in  Bedell  v.  Jliffman,  2  Paige's  R'^p.  199,  is 
that  the  bill  Bhould  not  be  filed,  where  complainant  in  any  other  way 
can  be  protected  from  an  unjust  litigation  in  which  he  has  no  interest. 
But  the  Chancellor  in  the  above  case  of  the  executors  of  Lozier,  said, 
the  rule  he  thought,  will  be  found  to  be  too  broad,  and  that  the  bill 
has  been  sustained  in  many  cases  on  other  grounds  than  those  of  ab- 
solute necessity.  To  executors  (and  such  are  the  comp'ainants  in 
this  case)  the  court  has  always  been  liberal  in  extending  to  them  when 
acting  in  good  faith,  counsel,  indemnity  and  protection.  [If  the 
complainant  has  paid  over  money  to  one  defendant  under  a  claim  to 
which  he  was  bound  to  submit,  this  will  not  exclude  him  from  filing 
such  a  bill.     Kash  v.  Smith,  6  Conn.  Rep.  421.] 

A  person  taxed  in  two  towns  for  the  same  property,  which  is  taxa- 
ble in  one  only,  but  the  right  as  to  each  town  is  doubtful,  may  file  bill 
of  interpleader  to  compel  the  collectors  to  settle  the  right  between 
themselves.  (Mohawk  and  Hudson  Rail  Road  Co.  v.  Clute,  4  Paige's 
Rep.  385.)  So  against  two  collectors  of  two  counties,  in  both  which 
complainant  had  been  assessed  for  the  same  personal  property. 
(Thompson  v.  Ebbetts  and  Welch,  1  Hopk.  Ch.  Kep.  272.)  But  com- 
plainant in  his  bill  must  offer  to  bring  the  fund,  and  it  seems  in  case  of 
tax,  the  larger  tax,  into  court,  and  must  show  he  is  ignorant  of  the 
rights  of  the  claimants,  or  at  least,  that  there  is  some  doubt  which  is 
entitled  to  the  fund,  so  as  he  cannot  safely  pay  it  to  either.  '•  The 
only  ground  upon  what  the  court  assumes  jurisdiction  in  a  simple  bill 
of  interpleader,  is  the  danger  of  injury  to  the  complainant  from  the 
doubtful  rights  and  conflicting  claims  of  the  several  defendants,  as 
between  themselves."  For  this  reason  he  must  state  his  own  situa- 
tion, in  reference  to  the  fund  in  question,  or  the  duty  to  be  performed, 
and  the  nature  of  the  claims  of  the  several  defendants  to  the  same : 
and  where  it  appears  on  the  bill  that  one  of  them  is  clearly  entitled  to 
the  debt  or  duty  claimed,  the  bill  is  not  sustainable.  Where  complain- 
ant is  entitled  to  equitable  relief  against  the  legal  owner  of  the  pro- 
perty, if  the  legal  title  to  it  is  in  dispute  between  two  or  more,  so  as 
he  cannot  ascertain  to  which  it  belongs,  he  may  file  a  bill  in  the  nature 
of  a  bill  of  interpleader  and  for  relief,  against  both  of  the  comp'ain- 
ants. An  offer  to  pay  to  the  respective  collectors  such  amount  as  is 
properly  chargeable  to  the  complainants  on  .account  of  tlieir  real 
estate,  or  as  the  court  may  direct,  would  be  a  very  proper  ofl'er  in  a 
bill  for  relief,  in  the  nature  of  a  bill  of  interpleader  ;  but  it  is  not  what 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  59 

several  claims  ;  and  pray  that  they  may  interplead, 
so  that  the  court  may  adjudge  to  whom  the  thing 
belongs,  and  he  may  be  indemnified.  If  any  suits 
at  law  are  brought  against  him,  he  may  also  pray 
that  the  claimants  may  be  restrained  from  proceed- 
ing till  the  right  is  determined  (/). 

As  the  sole  ground  on  which  the  jurisdiction  of  ^JJ""* '^ ^^ 
the  court  in  this  case  is  supported  is  the  danger  of 
injury  to  the  plaintiff  from  the  doubtful  titles  of  the  60 

defendants,  the  court  will  not  permit  the  proceed- 
ing to  be  used  collusively  to  give  an  advantage  to 
either  party,  nor  will  it  permit  the  plaintiff  to  delay 
the  payment  of  money  due  from  him,  by  sugges- 
ting a  doubt  to  whom  it  is  due ;  therefore,  to  a 
bill  of  interpleader  the  plaintiff  must  annex  an  affi- 
davit that  there  is  no  collusion  between  him  and 
any  of  the  parties  (m)  ;  and  if  any  money  is  due 
from  him  he  must  bring  it  into  court,  or  at  least 
offer  so  to  do  by  his  bill  (?i)  (1). 

(I)  Prac.  Reg.  78;  Wy.  Ed.;  E.  B.  410;   1  Jac.  R.  205;  (8  Paige's 

J.  Comp.  V.  Edwards,  18  Ves.  376  ;  Ch.  Rep.  345.) 

Croggon  V.  Si/mons,  3  Madd.  130 ;  (n)  Prac.  Reg.  79,  Wy.  Ed. ;  Earl 

See  1  Jac.  R.  205.  of  Thanet  v.  Palteson,  3   Barnard, 

(wi)  2  Eq.  Ca.  Ab.  173  ;  Errington  247  ;  2  Ves.  Jr.  109  ;  Burnett  v.  An- 

V.  Att.  Gen.  Butnb.  303  ;  2  Ves.  &  derson,  I  Meriv.  405  ;  Warington  v. 

is  required  in  a  bill  filed  for  the  simple  purpose  of  asking  the  defen- 
dants to  litigate  and  settle  their  conflicting  claims  between  themselves. 
For  these  reasons  the  bill  was  deemed  defective  in  M  Jiaiok  and  Hud- 
son R.  li  Co.  V.  Clute,  4  Taifie's  Rep.  supra,  391—3.  385. 

(1)  (8  Paige's  Ch.  Rep.  345.  4  id.  392.  385,  see  p.  59,  note.)  [In 
general,  on  a  bill  of  interpleader,  the  plaintiffs  will  be  allowed  their 
costs  out  of  the  fund,  but  if  the  money  has  not  been  brought  into 
court,  they  must  pay  interest  upon  it.  Spring  v.  S.  C.  Ins.  Co.,  8 
Wheat.  '268.1  For  further  information  on  this  fubject,  see  infra,  origi- 
nal pp.  [141—143.]  [For  form  of  bill,  see  Willis  on  Eq.  PI.  303  ; 
Eq.  Draft.  248.  2d  edit. 


60  FRAME  AND  END  OF  THE    [ChAP.  L 

[50]  3.  When  an  equitable  right  is  sued  for  in  an  in-    "^ 

of  Mrtiorarr"*  fcHor  court  of  cquity,  and  by  means  of  the  Hmited 
jurisdiction  of  the  court  the  defendant  cannot  have 
complete  justice,  or  the  cause  is  without  the  juris- 
diction of  the  inferior  court ,  the  defendant  (o)  may- 
file  a  bill  in  chancery,  praying  a  special  writ,  called 
a  writ  of  certiorari,  to  remove  the  cause  into  the  court 

61  of  chancery  (  7?) .     This  species  of  bill,  having  no 

Contents  there-         ,  ,  •  i  r  •     /• 

of-  Other  object  than  to  remove  a  cause  irom  an  mie- 

rior  court  of  equity,  merely  states  the  proceedings 
in  the  inferior  court,  shows  the  incompetency  of 
that  court,  and  prays  the  writ  of  certiorari.  It 
does  not  pray  that  the  defendant  may  answer,  or 
even  appear  to  the  bill,  and  consequently  it  prays 

Proceedin^a  i  j  i        j 

thereon.  "  no  Writ  of  subpoBua  (q).  The  proceedings  upon 
the  bill  are  peculiar,  and  are  particularly  mentioned 
in  the  books  which  treat  of  the  practice  of  the 
court  (r).  It  may  seem  improper  to  consider  cer- 
[51]  tiorari  bills  under  the  heads  of  bills  praying  relief; 
but  as  they  always  allege  some  incompetency  of  the 

Wheatstone,  1  Jac.  Rep.  202 ;  E.   I.  pay  in  the  money  may  be  grounded 

Comp.  V.   Edwards,    18  Ves.  376  ;  on  the  bill  only,  1  Sim.  385.] 
and  see  Staiham  v.  Hall,  1  Turn.  R.         (o)  Sowton  v.    Cutler,    2    Chan. 

30.      In   some  Instances    it    seems,  Rep.  108. 

that  if    an  injunction     should    have         {p)    Prac.   Reg-    41  ;    Boh.    Priv. 

been  prayed  it  would  not  be  granted,  Lond.  291  ;  Hilton  v.  Lawson,  Gary's 

unless  the  money  should  have  been  Rep.  48  ;  1  Vern.  178. 
actually  paid  into  court,   Dungey  v.         (5)  There  are  cases  mentioned  ia 

Angove,    3   Bro.   C.  C.  36.     [See  1  the  books  apparently  to  the  contrary; 

Hogan,    118  ;  1    Sim.    15.]      And  it  but  they  seem  not  to  have  been  cases 

may    be    observed,   that    where  the  of  bills  praying  merely  the   writ   of 

whole  subject  matter  of  the  suit  is  certiorari.     See  1  Ca.  in  Ch.  31. 
money,  and  the  same  has  been  paid         (r)  Prac.  Reg.  82,  Wy.  Ed. ;  Ste- 

into  court,  and  the  cause  heard,  the  phenson  v.  Houlditch,  2  Vern.  491 ; 

suit  is  at  an  end,  so  far  as  the  plain-  Woodcraft  v.  Kinaston,  2  Atk.  317 ; 

tiff  is  concerned.     See  Anon.  1  Vern.  Pierce   v.    Thomas,  1   Jac.   R.    54; 

351  ;  3  Barnard,  250.     [A  motion  to  Edwards  v.  Bowen,  2  Sim.  &.  Stu. 

514. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  61 

inferior  court,  or  injustice  in  its  proceedings  (s), 
and  seek  relief  against  that  incompetency  or  in- 
justice, they  seem  more  properly  to  come  into  con- 
sideration under  this  head  than  under  any  other. 
In  case  the  court  of  chancery  removes  the  cause 
from  the  inferior  court,  the  bill  exhibited  in  that 
court  is  considered  as  an  original  bill  in  the  court 
of  chancery,  and  is  proceeded  upon  as  such. 

Original  bills  not  praying   relief  have  been  al-  praying  rcuef. 
ready  mentioned  to  be  of  two  kinds  :  1,  bills  to  per- 
petuate  the  testimony  of  witnesses  ;  and  2,  bills  of 
discovery. 

1.  A  bill  to  perpetuate  the  testimony  of  witnesses  i-  ,^>"«  ^  ,.pc- 
must  state  the  matter  touching  which  the  plaintiff  contents  ther©. 
is  desirous  of  giving  evidence,  and  must  show  that  ? ' 
he  has  some  interest  in  the  subject  (t),  and  pray 
leave  to  examine  witnesses  touching  the  matter  so 
stated,  to  the  end  that  their  testimony  may  be  pre- 
served and  perpetuated  (u)  (1). 

(s)   1  Vern.  442.  testimony   of   witnesses,    Dalton  v. 

(J.)    Mason   v.    Ooodburne,    Rep.  Thomson,    Dick.    97.       [Jerome    v. 

Temp.    Finch.  391;  Smith  v.   Att.  Same,  5  Conu.  Rep.  352  ;  Miller  v. 

Gen.  Mich.  1777,  in  Chaac.     As  to  Sharp,  3  Randolpii's  Rep.  41];  the 

the  nature  of  tiie  interest   which  is  suit  is  terminated  by  their  examina- 

Bufficient  whereupon  to  institute  such  tion  ;  and  of  course,  therefore,  is  not 

a  suit,  see  6  Ves.  260,  261;  Lord  brouglit  to  a  hearing, //aW  v. //ocideff- 

Dursleyv.Fiizhardinge,6Ve9.23l;  don,  2    P.  Wms.  162  ;  2    Ves.  497  ; 

Alliin  V.  Allan,  15  Ves.  130.  Anon.  Ambl.  237  ;  Vaughan  v.  Fitz- 

(«)  Rose  V.  Gannel,  3  Atk.  439  ;  gerald,  1  Sch.  &,  Lefr.  316  ;  Morri- 

1  Sch.  &  Lefr.  316.     As  rehef  ia  not  son  v.  Arnold,  19  Ves.  670. 
prayed  by  a  bill   to   perpetuate  the 

(1)  [Jeremy's  Eq.  Jur.  273;  Jerome  v.  Same,  2  Conn.  Rep.  352; 
May  V.  Armslrong,  3  J.  J.  Marshall's  Rep.  201.  Such  a  bill  must  be 
sworn  to.  Laight  v.  Morgan,  1  J.  C.  429  ;  S.  C.  2  C.  C.  E.  344. 
For  a  form  of  tills  affidavit,  2  Madd.  Ch.  Rep.  252,  see  a  precedent  of 
such  a  bill  in  Willis  on  Pleading,  p.  310;  and  observe  the  notes  and 
xasea  there  ;  also  a  precedent  in  the  Equity  Drafts.  (2d  edit.)  p.  466.] 


62  FRAME  AND  END  OF  THE     [ChAP.  !► 

[52]  The  bill   ought  also  to  show  that  the  facts  to 

which  the  testimony  of  the  witnesses  proposed  to 
be  examined  is  conceived  to  relate  cannot  be  im- 
mediately investigated  in  a  court  of  law,  as  in  the 
case  of  a  person  in  possession  without  distur- 
bance (x)  ;  or  that  before  the  facts  can  be  investi- 
gated in  a  court  of  law  the  evidence  of  a  material 
witness  is  likely  to  be  lost,  by  his  death,  or  depar- 
ture from  the  realm  (y)  (1).     To  avoid  objection 

(x)  See  Duke  of  Dorset  v.  Gird-  could    only  be   what  is  technically 

ler,  Free,   in   Ch.   531  ;    1    Sim.  &  termed  an  examination  de  bene  esse, 

Stu.  88.  upon  the  ground  of  his  having  only 

(y)  According  to  the  latter  part  of  one   witness  to  a  matter   on   which 

this  proposition,  the  right  of  action  his  claim  depends,    or,  \f  ho    have 

may  be  either  in  the  plaintiff  er  de-  more,   oil  the  gfound   of  their  being 

fendant  in   equity.     With    reference  aged,  or  too  ill  or  infirm  to'  attend  iu 

to  the  defendant  the  time  of  bringing  a  court  of  law,  and  that  he  is  tliere- 

the  action  depending  upon  his  will,  fore  likely  to  lose  their  testimony  be- 

the  situation  of   the  plaintiff  would  fore  the  time  of  trial,  1  Sim.  &  Stu. 

be  similar  to  that  intimated  in  the  for-  90,  iu   which  case  it  seems    that  it 

mer  part  of   the  proposition  in   the  ought  to  be  stated  in  the  bill  that  th© 

text,  1  Sim.  &  Stu.  89  ;  and  with  re-  action  was  brought  before  the  same 

spect  to  the  plaintiff,  it  must  be  un-  was  filed.     Angellv.  Angell,  1  Sim. 

derstood  to  relate  to  the  case  of  his  &  Stu.  83.     On  the  general  subject 

not  being  able  at  present  to   sustain  seethe  cases  cited,  I  Sim.  &  Stu.  93, 

an  action.   Cox  v.  Colley,  Dick.  55  ;  note,  and  Teale  v.  Teale,  1  Sim.  & 

1  Sim.  &.  Stu.  1 14  ;  for,  if  he  should  Stu.  385. 
have  such  present    right,    his  object 

(1)  [Or  that  such  witness  is  beyond  sea;  or  that  the  facts  ta 
be  examined  are  of  great  importance,  or  no  other  but  a  single  wit- 
ness, although  neither  aged  nor  infirm.  (Shirley  v.  Earl  Ferrers,  3  P. 
Wms.  77 ;  Pearson  v.  Ward,  1  Cox,  1 77  ;  Hankin  v.  Middledilch,  2 
Brn.  C.  C.  640  ;)  or,  only  two  witnesses  {Lard  Ch/Jmondeley  v.  Lord 
Orford,  4  Bro.  C.  C.  15S,)  to  be  examined,  is  or  are  privy  lo  such  facts 
whereby  the  complainant  is  in  danger  of  losing  his  or  their  testimony.] 

Bills  to  perpetuate  testimony  seem  divisible  into  two  kinds  ;  namely, 
bills  to  perpetuate  testimony,  specifically  so  called,  and  bills  to  take 
testimony  de  bene  esse.  For  some  points  as  to  these,  not  decided  within 
the  period  compri.-ed  in  the  present  editor's  field  of  labor,  the  reader 
is  referred  to  Story '.s  Eq.  PI.  J)  299—310. 

The  distinction  between  the  two  bills  according  to  Mr.  Story  is. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  63 

to  a  bill  framed  on  the  latter  grronnd  it  seems  pro-  Affidaritin  rap. 

O  1  port. 

per  to  annex  to  it  an  affidavit  of  the  circumstances 
by  which  the  evidence  intended  to  be  perpetuated 
is  in  danger  of  being  lost  (z)  ;  a  practice  adopted  [53] 
in  other  cases  of  bills  which  have  a  tendency  to 
change  the  jurisdiction  of  a  subject  from  a  court 
of  law  to  a  court  of  equity,  and  which  will  be  af- 
terwards more  particularly  noticed.     It  seems  ano-  Additional  ayer- 

r  •'  ment. 

ther  requisite  to  a  bill  of  this  kind  that  it  should 
state  that  the  defendant  has,  or  that  he  pretends 

to  have,  or  that  he  claims,  an  interest  to  contest  _. 

o4 
the  title  of  the  plaintiff  in  the  subject  of  the  pro- 
posed testimony  (a). 

4.  Every  bill  is  in  reality  a  bill  of  discoveiy ;  but  ^Joy^j"y  °^  ^^ 
the  species  of  bill  usually  distinguished  by  that 
title  is  a  bill  for  discovery  of  facts  resting  in  the 
knowledge  of  the  defendant,  or  of  deeds  or  writings, 
or  other  things  in  his  custody  or  power,  and  seek- 
ing no  relief  in  consequence  of  the  discovery  (1), 

(r)   Earl  of  Suffolk  v.  Green,  1  see  Philips  v.    Carew,  1   P.   Wms. 

Atk.  450.     All  affidavit  of  like  cir-  117;  Shirley  v.  Earl  Ferrers,  3  P. 

cunistances  is   also   requisite,  where  Wms.  77. 

the  object  is  merely  the  examination  (a)    See  Lord  Dursley  v.   Fitz- 

of  the  witness  de  bene  esse.     Angell  hardinge,  6  Ves.  251. 
V.  Angell,  1  Sin^.  &.  Slu.  83  ;  and 

that  the  former  lies  where  no  present  suit  can  be  brought  at  law  by  the 
■  party  seeking  the  aid  of  the  court  to  try  his  right ;  the  latter  in  aid  of 
a  suit  pending.  Story's  Eq.  PI.  \  303.  307.  In  New-York,  provision 
by  statute  exi.-ts  for  taking  testimony  de  bene  esse  before  certain  officers, 
without  filing  a  bill. 

(1)  The  rule  to  be  applied  to  a  bill  seeking  discovery  from  an  in-  xhebill. 
terested  party,  is,  that  the  compkinant  shall  cliarge  in  his  bill  tliut  iho 
facts  are  known  to  the  defendant,  and  ought  to  be  di.*c'o?ed  by  him  ; 
and  thai  the  complaiimni.  is  unable  to  prove  them  by  ot',er  testimony. 
And  wlipn  the  facts  are  desired  to  assist  a  court  of  law  in  the  progress 
of  a  cause,  it  should  be  affirmatively  stated  in  tlie  bill,  that  they  are 


<64  FRAME  AND  END  OF  THE    [ChAP.  I. 

though  it  may  pray  the  stay  of  proceedings  at  law 

wanted  for  such  purpose.     (Brown  v.  Swann,   10  Peters,  502.497. 
But  see  note,  infra.) 

[In  order  to  give  jurisdiction,  on  account  of  the  defect  of  proof,  the 
fact  sought  to  be  discovered  must  rest  exclusively  in  the  defendant's 
knowledge,  and  be  susceptible  of  no  other  proof;  and  must  be  so  al- 
leged.    Emerson  V.  Stalnn,  3  Monroe's  (Kentucky)  Rep.  117.] 

If  certain  facts  essential  to  the  merits  of  a  claim  purely  legal,  be 
exclusively  within  the  knowledge  of  a  party  against  whom  that  claim 
is  asserted,  he  may  be  required  to  disclose  those  facts;  and  the  court 
being  thus  in  possession  of  the  cause,  will  proceed  to  determine  the 
whole  matter  in  controversy.  But  this  rule  cannot  be  abused  by  being 
employed  as  a  mere  pretext  for  bringing  causes  proper  for  a  court  of 
law,  into  a  court  of  equity.  If  the  answer  of  defendant  discloses 
nothing,  and  plaintiff  supports  his  claim  by  evidence  in  his  own  posses- 
sion, unaided  by  the  confessions  of  the  defendant,  the  established  rules 
limiting  the  jurisdiction  of  courts  require  that  he  should  be  dismissed 
from  the  court  of  chancery,  and  permitted  to  assert  his  rights  in  a 
court  of  law.  {Russell  v.  Clark's  Ex'rs.,  7  Cranch  Rep.  69 — 97 ;  2 
Cond.  Rep.  422.  417.) 

In  the  late  court  of  chancery  in  New-York  it  was  settled,  notwith- 
standing the  English  decisions,  infra,  that  if  a  bill  contains  no  prayer 
in  the  usual  form,  either  for  specific  or  general  relief,  it  may  be  con- 
sidered a  bill  of  discovery  merely,  although  the  word  decree  is  erro- 
neously in>e;ted  -n  the  prayer  for  process  of  subpoena  instead  of,  or 
after,  the  word  direction;  which  latter  word  instead  of  the  former 
should  be  inserted  in  the  prayer  of  process  upon  a  bill  of  discovery. 
{Schroeppel  v.  Redfield,  5  Paige's  Ch.  Rep.  245;  Mclntyre  v.  Trus. 
ties  of  Union  College  and  E.  Noll,  6  !d.  242—3.  239.)  The  prayer 
for  relief  usually  precedes  that  for  process  ;  and  no  relief  can  be  granted 
upon  the  ordinary  conclusion  fortlie  prayer  for  subpcena.  It  is  nothing 
more  than  a  prayer  for  such  process,  and  there  is  very  little  difference 
in  the  effect  of  the  expressions  "  to  abide  the  further  order  and  direc' 
tion  of  the  court,"  or  the  further  order  and  decree  of  the  court.  If 
the  bill,  although  for  discovery,  contains  a  prayer  for  relief,  it  is  con- 
verted into  a  bill  for  relief,  bit  the  prayer  for  process  does  not  have 
that  effect.  (Id.  5  Pa^ge,  245—8.  1  Edw.  V.  C.  R.  271.) 
Bill  of  discovery  A  bill  which  specifically  prays  a  discovery  only,  but  concludes  with 
pra^V"for  g^ene-  *  prayer  for  general  relief,  is  a  bill  for  relief.  But  liberty  will  be  given 
rai relief.  to  amend  by  striking  out  the  prayer  for  general  relief.      Angell  v. 

We^tcombs,  6  Sim.  30. 

If,  in  the  praytr  of  process,  a  bill  prays  that  the  defendant  may 
abide  such  order  and  decree  as  the  court  may  think  proper  to  make, 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  64 

till  the  discovery  should  be  made.     This   bill   is  For  what  they 

■'  are  commonly 

commonly  used  in  aid  of  the  jurisdiction  of  some  "'*"*• 
other  court,  as  to  enable  the  plaintiff  to  prosecute 
or  defend  an  action  at  law  (b)  (1),  a  proceeding 

(b)  5  Madd.  18.       ; 

the  bill  is  a  bill  for  relief;  and  if,  without  such  words,  the  bill  would  inaertion  of 
be  a  mere  bill  of  discovery,  it  will  be  demurrable  as  a  bill  for  relief,  birto  a^bn'i'*^for 

Ambury  v.  Jones,  1  Younge,  199  ;  James  v.  Herrintt,  6  Sim.  428.  relief  in  the 

_,  prayer  of  pro- 

But  the  words  "  abide  such  order  therein,"  without  the  word  "  de-  ceea. 

cree,"  will  not  have  this  effect  ;  because  the  word  "order"  must  be 
considered  as  meaning  such  an  order  as  is  consistent  with  the  general 
scope  of  the  case  made  by  the  bill,  as  a  mere  bill  of  discovery.  Ba- 
ker V.  Bramah,  7  Sim.  17. 

A  bill  which,  besides  pravinsf  a  discovery,  prays  for  a  commission  Bill  for  a  eom- 

•  •  ,  .      ■  .,        r       ,  ,     ■         ■   r-,         ,     r  mlSSlon      tO      CX- 

to  examine  witnesses  abroad  m  aid  of  the  plaintin  s  defence  to  an  ac-  amine  witnesses 
tion,  and  for  an  injunction  to  restrain  proceedings  in  the  mean  time,  is  junction.*"  '** 
not  a  bill  for  relief.     And  therefore  a  demurrer  in  b'lr  of  relief  to  such 
a  bill,  without  mentioning  discovery,  is  bad.     MUls  v.  Campbell,  2  Y. 
&  C.  Eq.  Ex.  389. 

(1)  A  defendant  at  law  may  file  a  bill  of  discovery,  whether  the  Bill  of  discovery 
object  of  it  is  to  sustain  a  defence  to  an  action,  or  rebut  the  evidence  to  rcijut  cvi- 

•  <•     1  •  mi  I    «".  /-  dence  in  support 

m  support  of  the  action.     Glascoll  v.  The  Governor  and  Company  of  of  enaction. 
the  Copper  Miners  of  England,  11  Sim.  305. 

[A  bill  of  discovery  for  matters  material  to  the  defence  of  the  plain- 
tiff in  a  suit  at  law  against  him,  must  state  the  nature  of  that  defence. 
It  ought  to  state  enough  to  enable  the  court  to  see  that  the  ends  of 
justice  require  its  interposition  ;  and  the  facts  sought  to  be  discovered 
should  be  so  far  stated  as  to  show  their  j  ertinency  and  relevancy. 
M'Intyre  v.  Mancius,  3  J.  C.  R.  46  :  S.  C.  on  appeal,  16  J.  R.  692  ; 
Gelston  v.  Hoijt,  1  J,  C.  R.  543 ;  Leggeit  v.  Postley,  2  Paige's  Ch. 
Rep.  699.] 

In  a  late  case  in  New-York  it  was  held,  that  the  bill  lies,  as  a  ge- 
neral rule,  where  discovery  is  shown  to  be  material  in  aid  of  a  defence 
in  a  suit  at  law,  and  it  need  not  aver  that  complainant  cannot  other- 
wise establish  his  defence  at  law.  The  head  note  of  the  case  of 
Legget  V.  Postley,  2  Paige's  Rep.  699,  contra,  is  not  warranted  by  the 
opinion  of  the  court  in  that  respect.  It  is  only  necessary  to  show 
that  the  discovery  is  material  to  his  defence  at  law,  not  that  it  is  ab- 
solutely necessary  ;  but  where  he  seeks  to  give  jurisdiction  to  the 
court  of  chancery  to  grant  relief  upon  the  ground  that  a  discovery 
was  necessary,  and  that  this  court  having  gained  jurisdiction  of  the 

7 


65  FRAME  AND  END  OF  THE    [ChAP.  I. 

before  the  king  in  council  (c),  or  any  other  legal 


(c)  1  Ves.  205. 


cause  for  that  purpose,  will  retain  it  for  the  purpose  of  doing  complete 
justice  between  the  parties,  he  must  not  only  show  that  the  discovery 
is  material  to  his  defence  at  law,  but  must  also  allege  affirmatively 
that  he  cannot  establish  such  defence  without  the  aid  of  the  discovery, 
and  in  such  case  if  the  bill  does  not  show  a  discovery  is  necessary  as 
•well  as  material  and  convenient,  defendant  may  demur  to  the  relief 
sought  by  such  bill.  The  defendant  must  answer  and  make  the  dis- 
covery, (even  in  case  of  libel  suit,  where  it  will  not  criminate  himself 
or  subject  him  to  penalty  or  forfeiture  ;  for  if  so,  it  would  violate  the 
spirit  of  the  constitution,  declaring  that  no  one  shall  be  compelled  in 
any  criminal  case,  to  be  a  witness  against  himself,)  although  he  de- 
murs to  the  relief.  A  similar  averment  of  (he  necessity  of  a  discovery 
in  aid  of  his  defence,  and  sworn  to,  is  necessary,  where  he  asks  for 
injunction  to  stay  proceedings  there  until  answer  to  the  bill.  He  must 
in  a  bill  of  discovery  charge,  either  on  information  and  belief,  or 
otherwise,  that  the  matters  of  which  he  seeks  a  discovery  are  true  in 
point  of  fact,  but  the  omission  may  be  supplied  by  amendment. 
(March  v.  Davhon,  9  Paige's  Ch.  Rep.  683—6,  &c.  680.  See  Broun 
V.  Swan,  10  Peters,  602,  supra,  note.  Also,  Russell  v.  Clark^s  Ex^rs, 
7  Cranch,  same  note;   and  Story's  Eq.  PI.  4th  edit.,  5  319,  n.  2.) 

After  a  verdict  at  law,  a  party  comes  too  late  with  a  bill  for  dis- 
covery. There  must  be  a  clear  case  of  accident,  surprise  or  fraud, 
before  equity  will  interfere.     (Id.  504,  Brown  v.  Swan.) 

A  mere  bill  for  discovery  in  aid  of  a  defence  of  a  suit  at  law,  does 
not  concern  property,  and  therefore  the  amount  required  (in  New- 
York  by  statute)  to  sustain  the  jurisdiction  or  "  dignity"  of  the  court, 
(viz.  $100)  is  immaterial.  But  by  introducing  a  prayer  for  relief, 
complainant  makes  it  a  suit  "  concerning  property"  within  the  pro- 
visions of  the  statute,  and  if  the  value  is  less  than  $100,  the  bill  must 
be  dismissed  with  costs.  \Idem.  5  Paige,  245 — 8.  Goldey  v.  Becker, 
1  Edw.  V.  C.  R.  271.) 

As  to  the  right  to  file  a  bill  of  discovery  against  a  partner  of  a  firm 
after  its  dissolution,  and  the  effect  of  his  answer  on  oath  as  evidence  in 
aid  of  a  defence  to  a  suit  at  law,  the  chancellor,  in  Woods  v.  Norton, 
B  Paige's  Rep.  249,  on  motion  to  dissolve  injunction,  held  that  such 
answer  would  not  be  evidence  ;  but  Mr.  Justice  Bronson,  in  the  only 
opinion  given  on  appeal,  Norton  v.  Woods,  22  Wendell  Rep.  524,  af- 
firming the  decision  of  the  chancellor,  expresses  his  dissent  from  the 
chancellor,  no  question  being  taken  however  thereon,  except  the  ge- 
neral question  of  reversal  or  affirmance  of  the  decree,  the  point  dis- 
cussed by  Judge  Bronson  as  to  the  right  to  file  a  bill  of  discovery  and 
the  effect  of  such  answer,  is  to  be  regarded  as  an  open  question.  (See 
ibid.  22  Wend.  625.  n.  520.)     See  further,  note,  infra. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  65 

proceeding  of  a  nature  merely  civil  (d)  before  a 
jurisdiction  which  cannot  compel  a  discovery  on 
oath  (6')  ;  except  that  the  court  has  in  some  instances 
refused  to  give  this  aid  to  the  jurisdiction  of  in- 
ferior courts  (/)  (1).     Any  person  in  possession  of  p.j^^  ^ 
an  estate,  as  tenant  or  otherwise,  may  file  a  bill  '°„"„  '".alnsra 
against  a  stranger  bringing  an  ejectment,  to  dis-  p|^'^"j';"^"'^J^<='' 
cover  the  title  under  which  the  ejectment  may  be 
brought  (g),  though  the  plaintiff  may  not  claim 
any  title  beyond  that  of  a  mere  tenant  or  occu- 
pant (2).     A  bill  of  this  nature  must  state  the  mat-  contents  there- 

.    (d)  2  Ves.  398.  (/)  1  Ves.  205. 

(e)  Du7m  V.  Coates,  1  Atk.  288  ;         (g)  1  Ves.  249 ;  sed  qu.  note. 
1  Ves.  205  ;  Anon.  2  Ves.  451. 


(1)  It  has  never  been  decided  that  a  discovery  will  be  enforced  by  .     ., 

,  ^,  ...riip  DiscoTcry  m  aid 

the  court  of  chancery  in  aid  o;  the  defence  to  a  suit  in  a  foreign  court,  of  proceedings 

But,  at  all  events,  it  will  not  bo  enforced  where  the  bill  does  not  state  court  ""^^'^"^ 

that  the  plaintiff  cannot  have  a  discovery  in  the  foreign  court.     Bent 

V.  Young,  9  Sim.  180. 

(2)  The  case  of  Metcalfv.  Harvey,  1  Ves.  sen.  249,  (cited  above,) 
where  Lord  Ilardwicke  appears  to  have  decided  that  a  person  in  pos- 
session of  an  estate,  against  whom  another  had  brought  ejectment, 
might  bring  a  bill  against  the  plaintiff  in  that  suit,  to  compel  him  to 
discover  his  title  under  which  he  claimed  to  oust  complainant  of  the 
premises,  has  not  been  followed  in  England,  and  is  in  conflict  with  de- 
cisions here,  and  with  Adderley  v.  Sparrow,  cited  by  Lord  Redesdale, 
(225,  [190],  infra);  Chancellor  Kent,  in  Kimherley  v.  Sells,  3  Johns. 
Ch.  Rep.  467,  decided  on  the  special  circumstances  without  intending 
to  endorse  Lord  Hardwicke.  A  party  to  a  suit  at  law  cannot  be  com- 
pelled to  discover  the  grounds  of  his  claim  therein.  The  other  party 
■must  resort  to  his  right  at  law,  for  a  bill  of  particulars.  But  com- 
plainant in  a  bill  of  discovery  must  state  a  case  which  shows  that  the 
discovery  sought  is  material  to  the  prosecution  or  defence  of  the  suit 
at  law,  whicli  he  wishes  to  establisli  by  the  defendant's  confessions  in 
answer  to  his  bill  ;  otherwise  the  bill  will  bo  regarded  as  a  mere  fish- 
ing bill.  It  is  not  sufficient  for  complainant  to  allege  that  the  matters 
as  to  which  discovery  is  sought  are  material  to  the  defence  in  the  suit 
at  law,  but  he  must  state  his  case  in  such  a  manner  in  his  bill,  that 
the  court  can  see  how  they  may  be  material.     Hence,  where  complain- 


66  FRAME  AND  END  OF  THE   [ClIAP.  L 

ter  touching  which  a  discovery  is  sought,  the  inte- 


ant  filed  bill  for  discovery  in  aid  of  a  prosecution  at  law,  or  rather  to 
aid  him  to  resist  a  set-off  which  defendant  in  a  notice  to  his  plea  of 
•  general  issue  had  set  up,  and  claiming  a  discovery  of  the  grounds  or 
particulars  of  such  set-off,  without  stating  a  case  agreeably  to  the 
foregoing  principles,  that  entitle  him  to  the  discovery  ;  a  demurrer 
was  sustained  on  appeal :  the  court  holding,  that  although  in  a  proper 
case,  a  discovery  in  aid  of  a  prosecution,  will  be  compelled  in  the 
same  manner  and  extent  as  if  for  defence,  yet  the  bill  was  defective  in 
not  stating  a  case  which  shows  that  the  discovery  sought  is  material 
to  resist  an  illegal  or  inequitable  claim  of  set-off.  {Lane  v.  Stebbins,  9 
Paige's  Rep.  624—6.  622  ;  citing  also  3  Johns.  Ch.  Rep.  47 ;  2  Id.  413.) 
The  court  will  not  aid  a  landlord  to  compel  discovery  from  his 
tenant  as  to  the  existence  of  covenants  or  conditions  in  a  lease,  where- 
by lessee's  estate  may  have  become  forfeited.  Therefore,  where  a  bill 
was  filed  for  the  purpose  of  ascertaining  whether  there  might  not  be 
something  in  the  original  lease,  (under  which  complainant  for  forty- 
two  years  had  received  a  certain  rent,  but  the  original  lease  he  had 
never  seen,  but  without  alleging  that  he  ever  believed  that  a  greater 
rent  was  reserved  or  stipulated  to  be  paid,)  which  would  entitle  com- 
plainant to  claim  other  or  greater  rights,  in  relation  to  the  lot,  than 
those  he  had  been  exercising  for  nearly  half  a  century,  it  was  pro- 
nounced a  fishing  bill,  and  demurrable.  (Lansing  v.  Pine,  4  Paige's 
Rep.  639.) 

If  the  facts  sought  to  be  discovered,  could  not,  if  disclosed,  be  so 
used  as  to  support  or  sustain  any  title  or  interest  of  the  complainant, 
or  enable  him  to  sustain  any  action  for  any  vested  interest,  the  bill 
cannot  be  sustained.  As  where,  in  Massachusetts,  the  bill  charged  a 
fraud  on  part  of  defendant  acting  as  deputy  sheriff,  and  in  his  own 
natural  capacity  ;  but  the  plaintiff  did  not  show  sufficient  direct  in- 
terest in  the  subject  matter  to  entitle  him  to  discovery,  the  court  held 
that  over  a  direct  charge  of  fraud  they  had  no  jurisdiction  in  equity, 
and  that  though  a  fraud  incidentally  drawn  in  question,  the  court  hav- 
ing otherwise  jurisdiction  would  inquire  and  decide,  yet  the  bill  as  a 
bill  of  discovery,  was  not  sustainable  for  the  reasons  given.  (Fiske 
V.  Slack,  21  Pick.  Rep.  366.  361  ;  Holland  v.  Crufi,  20  Id.  321.) 
Bill  of  discove-  -^  bill  of  discovery  in  aid  of  a  defence  to  an  action  cannot  be  sus- 
ry  agamst  a  per-  tained  against  a  person  who  is  not  a  party  to   the  record  at  law,  al- 

son  not  a  party  e  r  r       J  J 

to  the  record,  in  though  the  plaintiff  at  law  is  only  the  agent  of  such  person,  and  has 
an  action  at  law.  ,  ,       ^  .  ,  •     ,    ,    ,r 

brought  the  action  on  his  beiialf. 

And  hence,  where  an  action  is  brought  by  the  agent  of  a  foreign 

sovereign  on  bills  of  exchange,  the  acceptors  thereof  cannot  make  the 

sovereign  a  party  to  a  bill  of  discovery  in  aid  of  their  defence  to  such. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  66 

rest  of  the  plaintiff  and  defendant  in  the  subject, 

action.  The  Queen  of  Portugal  v.  Glyn,  7  CI.  &Fin.  466.  And  upon 
the  same  principle  where  an  action  is  brought  again-t  underwriters  on 
a  policy  of  insurance,  they  cannot  make  a  person  not  a  party  to  the 
record  at  law,  a  party  to  a  bill  of  discovery  against  the  plaintiff  at 
law;  though  they  allege  that  the  policy  was  effected  by  the  plaintiff 
at  law  as  agent  for  such  other  person.  Such  a  practice  migiit  be 
made  an  engine  for  the  oppression  of  persons  alleged  to  be  interested, 
but  in  reality  not  interested  in  the  action  ;  and  where  such  persons  are 
also  out  of  the  jurisdiction,  it  might  also  be  made  a  means  of  delaying 
and  defeating  the  plaintiff  at  law.  Kerr  v.  Rew,  9  Law  J.  (N.  S.) 
148,  L.  C. 

A  bill  of  discovery  cannot  be  filed  against  one  who  is  apparently  a  Discovery  not 
mere  witness,  and  not  a  real   party  in  interest.     For  such  discovery  party^*^  nonuna 
could  not  be  evidence  for  another  in  a  suit  at  law.     But  under  the  Usury. 
New- York  usury  act,  May,  1837,  a  remedy  ait  law  is  given,  as  the  real 
as  well  as  nominal  plaintiff  in  record  may  be  examined.     Where, 
however,  defendants  at  law  had  been  tricked  out  of  their  defence,  a 
bill  for  discovery  and  relief  is  sustainable   on  ground  that  they  were 
deceived  and  defrauded  out  of  such  defence.     (Post  and  another  v. 
Board)nan,  10  Paige's  Rep.  580.) 

Where  two  are  sued  at  law  on  a  joint  contract,  on  a  demand  said  to 
be  usurious,  but  within  the  knowledge  of  one  of  the  defendants,  the 
other  cannot  file  a  bill  for  relief  to  make  his  co-defendant  a  witness 
merely  to  establish  the  usury.  But  where  the  defence  is  personal  as 
to  one,  and  can  only  be  established  by  the  testimony  of  his  co-defen- 
dant, lie  may  file  a  bill  for  relief  to  obtain  his  testimony.  (Saiage  v. 
Todd,  9  Paige's  Rep.  518.) 

Formerly  by  the  usury  law  in  New- York,  the  usurious  contract  was 
absolutely  void.  If  the  borrower  could  prove  the  usury,  it  was  a  com- 
plete defence  at  law.  If  he  could  not,  and  was  compelled  to  invoke 
the  aid  of  equity,  by  a  bill  of  discovery  against  the  lender,  calling  on 
him  to  admit  or  deny  the  usury,  he  was  met  by  the  cardinal  maxim  of 
that  court,  that  "  he  who  asks  for  equity  must  do  equity,"  and  there- 
fore neither  discovery  nor  relief  could  be  obtained,  without  a  repay- 
ment of  the  sum  actually  lent  with  lawful  interest,  and  an  offer  to 
that  effect  must  have  been  made  in  the  bill,  or  it  was  demurrable.  The 
court  guarded  that  principle,  where  the  bill  was  for  discovery  merely, 
by  the  additional  principle  that  equity  will  not  coinpei  a  defendant  to 
answer  on  oath,  and  thus  become  a  witness  for  his  adversary  against 
himself,  where  his  answer  may  subject  him  to  a  criminal  proceeding, 
penalty,  forfeiture,  or  loss  in  the  nature  of  forfeiture.  In  such  case 
therefore,  the  borrower  was  bound  to  waive  the  forfeiture  and  pay  the 
actual  loan,  not  only  because  it  was  just  and  equitable,  but  to  guard 


66  FRAME  AND  END  OF  THE    [ChAP.  I^ 

and  the  right  of  the  first  to  require  the  discovery 
from  the  other  (h). 
Bills  of  discove-      A  bill  seeking  a  discovery  of  deeds  or  writings 

ry  of  documents  .  T/'/^ii  iii 

prayinj;  relief   somotimes  Dravs  a  reliei,  lounded  on  the  deeds  or 

jouiided  on  i.        •/ 

them.  writings  of  which  the  discovery  is  sought.     If  the 

relief  so  prayed  be  such  as  might  be  obtained  at 
law,  if  the  deeds  or  writings  were  in  the  custody 

(Ji)  Car  dale  V.  WatUns,  5  Madd.     Dick.  652  -,8.0.1   Bro.  C.  C.  468.  . 
18 ;    and  see  Moodaly  v.   Moreton,     [Jeremy's  Eq.  Juris.  257.] 

against  the  possibility  of  defendants  answer  being  the  means  oi  sub- 
jecting him  to  a  forfeiture.  In  some  cases,  such  as  bonds  with  war- 
rants to  confess  judgment,  and  mortgages  with  power  to  foreclose  by 
advertisement  at  law,  the  holder,  from  the  nature  of  his  security,  need 
not  go  tt)  a  court  of  law  or  equity  to  enforce  them.  The  borrower  in 
such  cases,  (although  he  could  prove  the  usury  without  resorting  to 
the  oath  of  the  lender,)  had  no  opportunity  of  setting  it  up,  or  availing 
himself  of  it  at  law,  and  therefore,  in  such  case  also,  where  he  was 
compelled  to  file  his  bill  and  ask  relief  in  equity,  although  he  required 
no  discovery,  the  court  would  not  relieve  him  from  the  usurious  excess, 
excepting  on  the  equitable  condition  of  repaying  the  sum  actually 
loaned.  The  Revised  iStatutes  (New-York)  changed  the  law  and 
circumscribed  the  original  power  and  authority  of  the  court  to  impose 
the  above  terms  as  condition  of  discovery  or  relief,  or  both,  by  exempt- 
ing a  bona  fide  holder  from  the  operation  of  the  act :  by  dispensing 
with  the  necessity  on  part  of  borrower  on  bill  of  discovery  of  paying 
or  offering  to  pay  any  interest  uhatever  on  the  sum  or  thing  loaned; 
and  by  a  judicial  interpretation  of  the  act  in  the  court  of  errors,  that 
in  the  cases  above  enumerated,  wliere  the  security  was  of  such  na- 
ture as  to  preclude  the  borrower  from  recourse  in  the  first  instance  to 
law  or  equity,  as  on  bond  and  warrant,  or  mortgage  as  mentioned,  even 
where  he  could  prove  the  usury,  and  where  relief  only  is  asked  with- 
out any  discovery  from  the  lender,  it  shall  be  granted  without  requiring 
the  payment  of  the  money  loaned.  It  was  but  abrogating  a  particular 
rule  of  the  court,  to  give  effect  to  and  defeating  any  evasion  of  the  law 
for  the  prevention  of  usury.  By  consequence  on  bill  for  discovery, 
the  court  still  requires  payment  or  offer  in  the  bill  to  pay  the  principal 
sum  (without  interest)  ;  so  also  on  bill  for  discovery  and  relief ;  but 
on  bill  for  relief  only,  in  such  cases  as  those  suggested,  tlie  statute 
operates  in  full  vigor.  {Livingston  v.  Harris,  in  error,  11  Wend.  329, 
on  affirmance  of  S.  C.  3  Paige's  Rep.  628.) 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  66 

of  the  plaintiff,  he  must  annex  to  his  bill  an  affida- 
vit that  they  are  not  in  his  custody  or  power,  and 
that  he  knows  not  where  they  are,  unless  they  are 
in  the  hands  of  the  defendant  (i)  ;  but  a  bill  for 
a  discovery  merely,  or  which  only  prays  the  deli- 
very ofdeedsorwritings,  or  equitable  relief  grounded 
upon  them, does  not  require  such  an  affidavit  (k)  (1). 

If  the  title  to  the  possession  of  the  deeds  and  ^7°  action 'at 

/.       J  •    1    ,1  1     •     .•rr  '  J         law  is  necessary. 

writmgs  ot  which  the  plamtiii  prays  possession  de- 
pends on  the  validity  of  his  title  to  the  property  to 
which  they  relate,  and  he  is  not  in  possession  of  67 

that  property,  and  the  evidence  of  his  title  to  it  is 
in  his  own  power,  or  does  not  depend  on  the  pro- 
duction of  the  deeds  or  writings  of  which  he  prays  ^  ^ 
the  delivery,  he  must  establish  his  title  to  the  pro- 
perty at  law  before  he  can  come  into  a.  court  of 
equity  for  delivery  of  the  deeds  or  writings  (I). 

II.  Bills  not  original  are  either  an  addition  to  n- Buig  not  ori 

O  ginal. 

or  a  continuance  of  an  original  bill,  or  both.     An 

(t)  1  Ves.  344  ;  Hook  v.  Dorman,  247 ;    Whithurch  v.  Golding,  2  P. 

1  Sim.  &  Stu.  227.     [Executors  of  Wms.  541  ;  1  Ves.  344;  3  Atk.  132. 

Livingston  v.  Livingston,  4  Johns.  But  see   Aston   v.  Lard  Exeter,  6 

Ch.  Rep.  294.     See  form  of  affidavit,  Ves.  288. 

1  Grant's  Pr.  2d  edit.  13.]     [See  form  (Z)  See  Jones  v.  Jones,  3  Meriv. 

of  bill,  Willis,  13.  27;  and  further  on  161;    1    Madd.  Rep.  193  ;    Crow  v. 

this  species  of  bill,  p.  185, /)os<.]    '  Tyrrell,    3     Madd.    179;    Field  y. 

(k)  Godfrey  v.   Turner,   1  Vern.  Beaumont,  1  Swanst.  204. 

(1)  The  reason  of  this  distinction  is,  that  in  the  first  mentioned 
case  wliere  an  affidavit  is  required,  the  plaintiff  seeks  to  change  the 
tribuniil,  by  substituting  the  proceedings  of  a  court  of  equity  for  the 
less  tedious  and  less  expensive  procedure  of  a  court  of  law. 

It  seems  a  party  has  no  right  to  the  production  of  deeds  which  re- 
late alone  to  the  adversary's  title.  He  shall  have  discovery  of  so  much 
as  reUites  to  his  own,  but  not  pry  into  that  of  defendant.  But  when 
defendant  complies  with  the  prayer  for  inspection  of  the  deed,  without 
opposition,  no  difficulty  exists  on  that  part  of  the  case.  {Thompson 
V.  Eagle  et  al.,  3  Green's  Ch.  Rep.  (N.  J.)  275—6.  271.) 


67  FRAME  AND  .END  OF  THE  [ChaP.  I. 

whcnnn^cnd-  imperfection  in  the  frame  of  a  bill  may  generally 

mentis  not  per-  i  ^     o  ^ 

Si9o"'ca8ion  be  remedied  by  amendment ;  but  the  imperfection 
kid.*""  °' *'"*  may  remain  undiscovered  whilst  the  proceedings 
are  in  such  a  state  that  an  amendment  can  be  per- 
mitted according  to  the  practice  of  the  court  (1). 


(1)  [Amendments  are  granted  only  where  there  is  some  defect  as  to 
parties,  or  some  omission  or  mistake  of  a  fact  or  circumstance  connected 
with  the  substance  of  the  case,  bat  not  forming  the  substance  itself, 
or  where  there  is  some  defect  in  the  prayer  for  relief.  Lyon  v.  Tall- 
mage,  1  J.  C.  R.  184  ;  Verplanck  v.  Mercantile  Ins.  Co.  of  N.  Y.,l 
Edwards^  V.  C.  Reports,  46.  See  when  amendments  are  allowed  in 
the  court  of  chancery  of  the  State  of  New- York,  Rules  43,  44,  45« 
60;  2  R.  S.  184;  Hunt  v.  Holland,  3  Paige's  C.  R.  78.  But  the 
ordinary  rules  do  not  apply  to  sworn  bills.  Parker  v.  Grant,  1  J.  C. 
R.  434 ;  Rodgers  v.  Rodgers,  1  Paige's  C.  R.  424 ;  Whitmarsh  v. 
Campbell,  2  lb.  67 ;  and  see  Beekman  v.  Waters,  3  J.  C.  R.  410  ;  and 
Renwick  v.  Wilson,  6  lb.  81.  When  a  complainant  wants  to  amend 
a  sworn  bill,  he  must  state  the  proposed  amendments  distinctly,  so  that 
the  court  can  see  that  they  are  merely  in  addition  to  the  original  bill, 
and  not  inconsistent  therewith.  He  must  also  swear  to  the  truth  of  the 
several  matters  proposed  to  be  inserted  as  amendments,  and  render  a 
valid  excuse  for  not  incorporating  them  in  the  original  bill ;  and  the 
application  to  amend  must  be  made  as  soon  as  the  necessity  of  such 
amendment  is  discovered.  Rodgers  v.  Rodgers,  supra  ;  Whitmarsh  v- 
Campbell,  supra ;  Verplanck  v.  Mercantile  Ins.  Co.  of  N.  Y.  supra. 
Amendments  to  a  bill  are  always  considered  as  forming  part  of  the 
original  bill.  They  refer  to  the  time  of  filing  the  bill ;  and  the  defend- 
ant cannot  be  required  to  answer  any  thing  which  has  arisen  since  that 
time.  Hart  v.  Everett,  1  Paige's  C.  R.  124.  Consequently,  an  origi- 
nal bill  cannot  be  amended  by  incorporating  therein  any  thing  which 
arose  subsequent  to  the  commencement  of  the  suit.  This  should  be 
stated  in  a  supplemental  bill.  Stafford  v.  Howlett,  lb.  200.  If  the 
cause  has  progressed  so  far  that  an  amendment  cannot  be  made,  the 
court  will  give  the  complainant  leave  to  file  a  supplemental  bill.  And 
where  such  leave  is  given,  the  court  will  permit  other  matters  to  be  in- 
troduced in  the  supplemental  bill,  which  might  have  been  incorporated 
in  the  original  bill  by  way  of  amendment.     lb. 

After  replication,  the  plaintiff  will  not  be  allowed  to  amend  his  bill 
until  after  he  has  obtained  leave  to  withdraw  his  replication  ;  and  the 
materiality  of  the  amendment,  and  the  reason  why  it  was  not  stated  be- 
fore, must  be  satisfactorily  shown  to  the  court.  [See  cases  attached  to 
the  text.]     But  if  a  witness  has  been  examined,  the  pleadings  cannot 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  67 

This  is  particularly  the  case  where,  after  the  court 
has  decided  upon  the  suit  as  framed,  it  appears 
necessaiy  to  bring  some  other  matter  before  the 
court  to  obtain  the  full  effect  of  the  decision  ;  or, 
before  a  decision  has  been  obtained,  but  after  the 
parties  are  at  issue  upon  the  points  in  the  original 
bill,  and  witnesses  have  been  examined  (in  which 
case,  the  practice  of  the  court  will  not  generally 
permit  an   amendment  of  the  original  bill)   (in), 

• 

(?n)    See  Chap.  4.      An    amend-  Sim.  &Stu.  40;  or  to  correct  a  mere 

ment  for  the  purpose  of  adding  par-  clerical  error,  Att.  Gen.  v.  Newcomhe, 

ties,  Anon.  2  Atk.  15;  3  Atk.  111.  14  Ves.  1,   will   be    allowed  at  the 

371,  and  Palk  v.  Lord  Clinton,   12  hearing  of  the   cause.     In  the  case 

Ves.  48  ;  Daws  v.  Benn,  1  Jac.  &  of  an  infant  complainant,  this  liberty 

W.  513 ;    Wellheloved  v.  Jones,  1  it  seems  would  be  granted  without 

be  altered  or  amended,  unless  under  very  special  circumstances,  or  in 
consequence  of  some  subsequent  event  except,  for  the  purpose  merely 
of  adding  parties.  Thorn  v.  Germond,  4  J.  C.  R.  363.  After  publica- 
tion passed,  and  the  case  is  set  down  for  hearing,  the  plaintiff  will  not  be 
allowed  to  amend  his  bill,  by  adding  new  charges  ;  but  he  may  file  a 
supplemental  bill  on  payment  of  costs.  Shepherd  v.  Merrill,  3  J.  C.  R. 
423  ;  and  see  page  62,  ante,  and  notes  there.  A  second  amendment  to 
a  bill  was  refused,  after  an  answer  by  one  defendant,  and  a  plea  by  ano- 
ther, who  was  surety,  and  the  plea  allowed  and  the  bill  as  to  him  dis- 
missed, and  a  motion  for  rehearing  granted,  after  eighteen  months  had 
elapsed  from  the  first  amendment,  and  no  new  evidence  since  acquired  ; 
and  the  second  amendment  being  substantially  the  same  as  the  firsti 
though  more  directly  charging  the  defendants  with  fraud.  Kirby  v. 
Thompson,  6  J.  C.  R.  79. 

Amendments  by  merely  adding  parties  have  been  allowed  at  almost 
every  stage  of  a  cause.  See  amendments  of  a  formal  part  allowed 
after  a    demurrer.     M'llvaine  v.  Willis,  3  Paige's  C.  R.   605. 

A  complainant  cannot,  as  of  course,  amend  his  answer  by  leaving  out 
the  name  of  defendant.  Chase  v.  Dunham,  1  Paige's  C.  R.  572.  Nor 
can  one  defendant  be  struck  out  on  motion  of  another,  without  notice. 
Livingston  v.  Ogden,  4  J.  C.  R.  94. 

As  to  office  practice  and  service  upon  amendments,  see  Luce  v.  Gra- 
ham, 4  J.  C.  R.  170  ;  Beekman  v.  Waters,  3  lb.  410  ;  Renwick  v.  WiU 
son,  6  lb.  81  ;  Bennington  Iron  Co.  v.  Campbell,  2  Paige's  C.  R.  159  ; 
Hunt  V.  Holland,  supra. ;  Rules  43, 44, 45.  60,  of  New- York  Chancery.] 


68  FRAME  AND  END  OF  THE    [ChAP.  L 

[56]  some  other  point  appears  necessary  to  be  made, 
or  some  additional  discovery  is  found  requisite  (n). 
And  though  a  suit  is  perfect  in  its  institution,  it 
may  by  some  event  subsequent,  to  the  fihng  of  the 
original  bill  become  defective,  so  that  no  proceed- 
ing can  be  had,  either  as  to  the  whole,  or  as  to  some 
part,  with  effect ;  or  it  may  become  abated,  so  that 
there  can  be  no  proceeding  at  all,  either  as  to  the 
whole,  or  as  to  a  part  of  the  bill.  The  first  in  the 
case  when,  althougli  the  parties  to  the  suit  may 
remain  bef(5re  the  court,  some  event  subsequent  to 
the  institution  of  the  suit  has  either  made  such  a 
change  in  the  interests  of  those  parties,  or  given  to 
some  other  person  such  an  interest  in  the  matters 
in  litigation  that  the  proceedings,  as  they  stand, 
cannot  have  their  full  effect.  The  other  is  the  case 
when,  by  some  subsequent  fivent,  there  is  no  per- 
son before  the  court  by  whom,  or  against  whom, 
the  suit,  in  the  whole  or  in  part,  can  be  prosecuted. 
It  is  not  very  accurately  ascertained  in  the  books 
^9  -  of  practice,  or  in  the  reports,  in  what  cases  a  suit 

L*^'J  becomes  defective  without  being  absolutely  abated; 
and  in  what  case  it  abates  as  well  as  becomes  de- 
restriction,  if  for  his  benefit,  Pritch-  proposed  alteration,  but  also  that  he 
ard  V.  Qwinchnnt,  Ambl.  147  ;  and  was  not  in  a  condition  to  have  made 
even  in  ordinary  cases  great  indiil-  it  earlier.  See  Longman  v.  Calli- 
gence  has  in  this  respect  been  shown,  ford,  3  Anstr.  807;  Forrest,  Exch- 
See  Filkin  v.  Hill,  4  Bro.  P.  C.  640  ;  Rep.  13  ;  Lord  Kilcourcy  v.  Ley,  4 
Toml.  Ed. ;  Palk  v-  Lord  Clinton,  Ma.dd.212;  Dean  of  Christchurch  v. 
.12  Ves.  48  ;  Woollands  v.  Crowcher,  Simonds,  2  Meriv.  467  ;  Wright  v. 
12  Ygs.  114;  Hamilton  V.Houghton,  Howard,  6  Madd.  106  ;  M' Neill  v. 
2  Bligh.  P.  C.  169.  And  with  regard  Cahill,  2  Bligh,  P.  C.  228.  See  Bar- 
to  the  practice  before  the  hearing,  it  nett  v.  Noble,  1  Jac.  &  W.  227. 
.  may  be  observed,  that  after  the  cause  (w)   See  Jones  v.   Jones,  3    Atk» 

is. at  issue  this  court  will  not  give  the     110;  Goodwin  v.  Goodwin,   3  Atk^ 
plaintiff  leave  to    amend,  unless  he     370. 
shows  not  only  the  materiality  of  the 


S.  III.]  SEVERAL   KINDS  OF  BILLS.  69 

fective.  But  upon  the  whole  it  may  be  collect- 
ed (o),  that  if  by  any  means  any  interest  of  a  party  hi^s^KmTdt 

.      .         ,  .,...,  J    fective  by  a 

to  the  suit  m  the  matter  m  litigation  becomes  vested  transfer  of  an 

'^  _  interest. 

in  another,  the  proceedings  are  rendered  defective 
in  proportion  as  that  interest  effects  the  suit ;  so 
that  although  the  parties  to  the  suit  may  remain 
as  before,  yet  the  end  of  the  suit  cannot  be  obtain- 
ed (7?)  (1).     And  if  such  a  change  of  interest  is  cI^Tabate'd^^y 

,   ,  .        ,  r»     1  1  1      *'"'  death-  or 

occasioned  by,  or  is  the  consequence  or,  the  death  mania^c  of  tho 


of  a  party  whose  interest  is  not  determined  by  his 
death,  or  the  marriage  of  a  female  plaintiff,  the  pro- 
ceedmgs  become  likewise  abated  or  discontinued, 
either  in  part  or  in  the  whole  (2).     For  as  far  as 

(o)  It  is  impossible  to  give  authori-  cases  it  will  be  found,  that,  in  gene- 
ties  for  every  thing  asserted  upon  this  ral,  the  grounds  of  the  decisions  war- 
head. The  books,  in  words,  almost  rant  the  conclusions  iiere  drawn.  . 
as  frequently  contradict  as  support  (p)  As  an  example,  see  Mole  v 
these  assertions.*  But  it  is  conceived,  Smith,  1  Jac.  &  W.  665. 
that  from  an  attentive  perusal  of  the 


(1)  Where  the  interests  of  new  parties  intervene  pendente  lite,  hav* 
ing  derivative  titles  under  plaintijjf,  the  suit  may  abate  or  become  de- 
fective, though  it  would  or  might  be  different  in  case  of  derivative 
titles  under  the  defendant  pendente  lite.  But  the  nature  of  an  abate- 
ment in  equity,  is  not  necessarily  a  destruction  of  the  suit  as  at  law, 
where  judgment  quod  cassetur  is  entered,  but  merely  an  interruption 
of  the  suit,  suspending  proceedings  until  the  new  parties  are  brought 
in,  and  if  not  done  in  proper  time,  the  court  will  dismiss  the  suit. 
But  in  any  case  of  a  purchase  or  tranf=fer  of  interest,  pendente  life,  the 
proper  parties  may  be.  brought  before  the  court,  and  the  cause  be  per- 
mitted to  stand  over,  to  allow  a  supplemental  bill  to  be  filed  by  or 
against  the  purchasers.  The  general  rule  is  that  all  persons  in  in- 
terest must  be  made  parties.  But  the  omission  is  not  necessary  cause 
of  abatement  of  the  suit.  Ti>at  can  arise  only  from  matters  subse- 
quent to  the  bill.  It  may  be  ground  at  hearing  for  a  dismission  of  the 
bill  without  prejudice,  for  want  of  proper  parties,  or  for  an  order  that 
bill  stand  over  to  make  new  parties,  with  leave  to  file  a  supplemental 
bill.     Huxie  v.  Carrel  al,  1  tSumncr's  Rep.  177—9.  173. 

(2)  [Where  a  party  who  has  not  been  served  with  a  subpoena,  nor 
appeared,  dies,  his  death  is  no  abatement  of  the  suit,  and,  consequently. 


69  FRAME  AND  END  OF  THE    [ChaP.  I. 

the  interest  of  a  party  dying  extends,  there  is  no 
longer  any  person  before  the  court  Ijy  whom  or 
against  whom  the  suit  can  be  prosecuted  ;  ancl  a 
married  woman  is  incapable  by  herself  of  prosecu- 
ting a  suit.  As  the  interest  of  a  plaintiff  generally 
extends  to  the  whole  suit,  therefore,  in  general, 
upon  the  death  of  a  plaintiff,  or  marriage  of  a  fe- 
male plaintiff,  all  proceedings  become  abated  (^)(1). 

(g)  1  Eq.  Ca.  Ab.  1,  margin  ;  Dick.  8  ;  Adamson  v.  Hull,  1  Sim.  &  Stu.  249- 

there  can  be  no  revivor.  Nor  can  a  plaintiff  have  the  benefit  of  the 
proceedings  in  the  suit  against  the  executor  or  administrator  of  the 
deceased  ;  for  the  intestate  was  never  an  effective  party  to  the  suit,  nor 
bound  by  the  proceedings.  A  bill,  under  these  circumstances,  is, 
strictly  speaking,  original  as  to  the  executor  or  administrator,  though 
supplemental  as  to  the  other  parties,  and  would  require  the  representa- 
tive of  the  deceased  to  answer  the  original  bill  as  well  as  the  supple- 
mental matter,  and  pray  the  distinct  relief  to  which  the  plaintiff  con- 
sidered  himself  to  be  entitled  against  ^uch  executor  or  administrator. 
Such  a  bill  would  fail,  if  a  general  demurrer  were  put  in  by  the  repre- 
sentative :  upon  the  ground  that  the  plaintiff  wq,s  not  entitled  to  revive 
the  suit,  nor  to  have  any  benefit  of  the  proceedings  against  him.  Asbee 
V.  Shipley,  Geldart  &  Madd.  296.] 

The  suit  abates  even  after  decree,  by  marriage  of  a  female  com- 
plainant, and  must  be  revived  in  favor  of,  or  against  her  husband,  before 
futther  proceedings  can  be  had,  except  to  set  aside  the  irregular  pro- 
ceedings had,  interim,  in  master's  office.  But  decree  of  court  of  er- 
rors affirming  decree  of  chancery,  after  marriage  of  female  complain- 
ant, must  be  carried  into  effect  here,  after  the  proper  parties  are  brought 
in.  But  the  marriage  of  a  female  defendant,  pending  suit,  does  not 
abate  it.  There  an  order  is  all  that  is  necessary,  that  the  suit  proceed 
•  against  her,  by  her  new  name  in  connexion  with  that  of  her  husband. 
(See  pp.  83,  note,  84,  note,  infra.)  When  suit  continues  in  name  of 
female  complainant  after  marriage,  without  her  husband  being  made 
party,  she  will  not  be  bound  by  the  decision  in  the  cause,  if  adverse  to 
her  interest:  although  defendant  would  be  bound  by  a  decree  in  her 
favor,  and  could  not  after,  urge  the  objection  that  the  suit  had  abated 
by  her  marriage.  {Quackenhush  v.  Leonard,  10  Paige's  Ch.  Rep. 
133—4.  131.) 

(1)  [But  an  injunction  is  neither  inoperative  nor    abated  by  the 
abatement  of  a  suit.     But  the  rule  is,  that  if  the  suit  abates  by  the 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  69 

Upon  the  death  of  a  defendant,  likewise,  all  pro-  „'  a  defend^f" 
ceedinffs  abate  as  to  that  defendant.     But  upon  the  [P^j      '^ 

^  ^       _  Where  they  do 

marriage  of  a  female   defendant  the  proceedings  ^ot  abate; 
do  not  abate  (r),  though  her  husband  ought  to  be 
named  m  the  subsequent  proceedings  (s)  (1).     If  teMs/^^te/-"*' 
the   interest  ot  a  party  dyuig  so  determmes  that  it 
can  no  longer  affect  the  suit,  and  no  person  be- 
comes entitled   thereupon  to  the   same    interest, 

(r)    4  Vin.  Ab.    147 ;    PI.  20 ;  1  withstanding,  proceeded  in  a  suit  as 

Vern.  318.  a  feme  sole,  the  mere  want  of  a  bill 

(s)  1  Vee.  182.     The  reason  of  the  of  revivor  is  not  error  for  which  a 

difference  between  the  cases  of  a  fe-  decree  can  be  reversed  upon  a  bill  of 

male  plaintitF  and  defendant  seems  review    brought   by   the    defendant. 

to  be,  that  a  plaintiff  seeking  to  ob-  Lady   Cramborne  v.   Dalmahoij,    1' 

tain  a  right,  the  defendant  may  be  Chau.    Rep.   231  ;     Nels.    Rep.   86. 

injured  by  answering  to  one  who  is  "  And  at  law,  if  a  woman  sues  or  be 

not  entitled  to  sue  for  it;  but  a  de-  sued  as  sole,  and  judgment  is  against 

fendant  merely  justifying  a  posses-  her  as  such,  though  she  was  covert, 

sion,  the  plaintiff  cannot  be  injured  she  shall  be  estopped,  and  the  sheriff 

by  a  decree  against  the  person  hold-  shall    take   advantage   of  the  estop- 

ing  that  possession.     And  it  has  been  pel."     1  Salk.  310  ;  1  Rol.  Ab.  869, 

determined,    that    where    a    female  1.  50. 
plaintiff  has  married,  and  has,  not- 

death  of  either  of  the  complainant  or  defendant,  the  party  against 
whom  the  injunction  issued,  or  his  representatives,  may  have  an  order 
requiring  the  complainant  or  liis  representatives  to  revive  within  a 
stated  time,  or  that  the  injunction  be  dissolved.  Where  a  suit  abates 
by  the  death  of  the  complainant,  those  who  succeed  to  his  rights  may 
apply  to  the  court  to  punish  a  breach  of  an  injunction  which  has  taken 
place  either  before  or  after  his  death,  as  soon  as  they  have  taken  the 
preliminary  steps  to  revive  the  suit  either  by  filing  a  bill  of  revivor  or 
otherwise  ;  and  it  is  not  necessary  for  them  to  wait  until  a  decree  of 
revivor  is  actually  obtained.  liawley  and  others.  Trustees,  <^c.  v.  Ben- 
netl,  Paige's  Ch.  Rep.  163.] 

If  on  death  of  husband  of  a  female  plaintiff  suing  in  her  right,  the 
widow  do  not  choose  to  proceed,  the  bill  abates,  and  she  is  not  liable 
for  costs.  See  on  this,  Story  Eq.  Pi.  ^  361,  n,  1  ;  the  comment  on  this 
subject  in  Cooper  Eq.  PI.  66 — 67,  there  quoted,  and  GraiU  v.  Van 
Schoonhnien,  9  Paige'a  Rep.  255. 

(1)  [And  if  she  lias  answered,  the  husband  is  bound  by  it.  1  Harr. 
Prac.  296,  (6th  edit.)  ;  and  see  Gary,  81.] 


70  FRAME  AND  END  OF  THE  [ChAP.  I. 

which  happens  in  the  case  of  a  tenant  for  life,  or  a 
person  having  a  temporary  or  contingent  interest, 
or  an  interest  defeasible  upon  a  contingency,  the 
suit  does  not  so  abate  as  to  require  any  proceeding 
to  warrant  the  prosecution  of  the  suit  against  the 
remaining  parties ;  but  if  the  party  dying  be  the 
only  plaintiff,  or  only  defendant,  there  may  be  ne- 

or  where  it  siir-  .,  i/'i  •  i-  /»!•• 

vives  as  In  the  cessarilv  au  end  of  the  suit,  no  sub  ect  oi  liticration 

case  of  the  death  J  'J  O       ^ 

or  co-'ex*e™uto''r!  remaining.     If  the  whole  interest  of  a  party  dying 
bandof a'^femafe  survivos  to  auothcr  party,  so  that  no  claim  can  be 

plaintiff,     or    of  ■■       ,  .  ,  .  /»    i  . 

persona  suing  on  madc  bv  or  asfauist  thc  representatives  oi  the  party 

behalf  of  them-         -.  "^  °  J-  .  ^      V 

Behes  and  oth-  dyiug,  as,  if  a  bill  is  filed  by  or  against  trustees  or 
[59]       executors,  and  one  dies  not  having  possessed  any 

71  of  the  property  in  question,  or  done  any  act  rela- 
ting to  it  which  may  be  questioned  in  the  suit,  or 
by  or  against  husband  and  wife,  in  right  of  the 
wife,  and  the  husband  dies  under  circumstances 
which  admit  of  no  demand  by  or  against  his  repre- 
sentatives (f),  the  proceedings  dp  not  abate.  So 
if  a  surviving  party  can  sustain  the  suit,  as  in  the 

^  case  (u)  of  several  creditors  (3),  plaintiffs  on  be- 

{t)  Dr..  Parry  v.  Juxon,  3  Chan.         (m)    As  another  example  of  the 

Rep.  40  ;  2  Freem.  133  ;    Shelberry  proposition  in  the  text,  the  c^se  of  a 

V.  Briggs,  2  Vern.   249  ;    Anon.  3  suit  by  joint-tenants  generally,  may 

*   Atkyns,   726.       &e4  Humphreys  v.  he  mentioned.  (2)     See  11  Ves.  309  ; 

Hollis,  1  Jac.  R.  73.  (1)  1  Meriv.  364. 

(1)  [M'Dowl  V.  Charles,  6  J.  C.  R.  132  ;  and  see  2  R.  S.  184,  185  ; 

Vaughan  v.  Wilson,   4  Hen.  &  Munf.    453  ;   Coppin  v. ,  2  P. 

Wms.  496;  Bond  v.   Simmons,  3  Atk.   21.     But  if  she  dies,  it  will' 
abate.     The  death  of  the  wife,  when  they  sue  for  what  they  have  a 
joint  right  to,  shall  not  abate  the  suit ;  for  the  whole  interest  survives 
to  the  hushand.     Piers  v.  Kawse,  Gary,  88.  169  ;  Shelberry  v.  Briggs, 
2  Vern.  249 ;  and  see  Doidin  v.  M'Dougall,  1  S.  &  S.  367.] 

(2)  [If  two  joint  tenants  exhibit  their  bill  and  one  releases,  this  will 
not  abate  the  suit  as  to  the  other.     2  Freem.  6.] 

(3)  [And  see  Edwards  on  Parties,  169,  pi.  75.  A  creditor  who  has 
been  permitted  to  come  in,  may  revive  in  cases  where  the  suit  abates. 
Pitt  V.  Creditors  of  D.  of  Richmond,  1  Eq.  Ca.  Abr.  pi,  7.] 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  71 

half  of  themselves  and  other  creditors  (x).  For 
the  persons  remaining  before  the  court,  in  all  these 
cases,  either  have  in  them  the  whole  interest  in  the 
matter  in  litigation,  or  at  least  are  competent  to 
call  upon  the  court  for  its  decree.  If,  indeed, 
upon  the  death  of  a  husband  of  a  female  plaintiff 
suing  in  iier  right,  the  widovi^  does  not  proceed  in 
the  cause,  the  bill  is  considered  as  abated,  and  she 
is  not  liable  to  the  costs  (3/).  But  if  she  thinks 
proper  to  proceed  with  the  caiLse,  she  may  do  so 
without  a  bill  of  revivor ;  for  she  alone  has  the 
whole  interest,  and  the  husband  was  a  party  in 
her  right,  and  therefore  the  whole  advantage  of  the 
proceedings  survives  to  her ;  so  that  if  any  judg- 
ment has  been  obtained,  even  for  costs,  she  w  ill  be 
entitled  to  the  benefit  of  it  (z).  But  if  she  takes  [^] 
any  step  in  the  suit  after  her  husband's  death  she 
makes  herself  liable  to  the  costs  from  the.beoinninof. 
If  a  female  plaintiff  marries  pending  a  suit,  and  72 

afterwards,  before  revivor,  her  husband  dies  (a),  a 
bill  of  revivor  becomes  unnecessary,  her  incapacity 
to  prosecute  the  suit  being  removed ;  but  the  sub- 
sequent proceedings  ought  to  be  in  the  name  and 
with  the  description  which  she  has  acquired  by  the 
marriage.     A  decree  on  a  bill  of  interpleader  may  or  ^^ere  the 

^  A  .         •'     plaintiflin  an  in- 

terminate  the  suit  as  to  the  plaintiff,  though  the  ^"^1^^*^=  ''^* 
Htigation  may  continue  between  the  defendants  by 
interpleader  (h)  ;  and  in  that  case  the  cause  may 

(x)  1  Meriv.  364  ;  Burney  v.  Mor-         (z)  Coppin  v.  ,  2  P.  Wnis. 

gan,  1  Sim.  &  Stu.  358  ;  1  Sim.  &  496. 

Stu.  494, 495.  (a)    Godkin    and  others  v.  Earl 

(y)  Treat,  on  Star  Chamb.    p.  3,  Ferrers,  1772. 
sect.  3  ;  Harl.  MSS.  (t)  See  above,  p.  60,  note  (n). 


75  FRAME  AND  END  OF  THE    [ChAP.  I» 

proceed  without  revivor  (c),  notwithstanding  the 
death  of  the  plaintiff  (^Z)  (1). 

There  is  the  same  want  of  accuracy  in  the  books 
in  ascertaining  the  manner  in  which  the  benefit  of 
a  suit  may  be  obtained  after  it  has  become  defec- 
tive, or  abated  by  an  event  subsequent  to  its  insti- 
[61]      tution,  as  there  is   in  the  distinction  between  the 

(c)  Anon.  1  Vern.  351.  see  Blackburn  v.   Jepson,   17    Ves. 

(rf)  Wliere  on  a  bill  filed  by  a  473  ;  S.  C.  3  Swanst.  132.  But 
corporation  aggregate,  suing  in  their  where  a  bill  is  filed  by  a  corporation 
corporate  capacity  only,  the  names  sole,  having  a  personal  interest,  the 
of  the  persons  forming  the  same  had  suit  necessarily  abates  by  his  death, 
been  inadvertently  and  unnecessarily  so  far  as  it  affects  his  personal  inter- 
inserted,  the  members  of  the  corpora-  est,  and  to  that  extent  may  be  ra- 
tion having  had  individually  no  inter-  vived  by  his  personal  representative  ; 
est  in  the  subject,  the  death  of  a  and  if  the  suit  affect  the  rights  of  his 
person  so  improperly  named  in  the  -  successor,  such  successor  may  obtain 
bill  was  not  considered  as  operating  the  benefit  of  it  in  a  different  form, 
to  abate  the  suit,  3  Swanst.  138 :  and 

"  (1)  [If  a  mortgagor  brings  a  bill  to  redeem,  after  an  account  is  de- 
creed, report  made,  and  divers  proceedings  are  had  in  the  cause,  and 
the  plaintiff  is  ordered  to  pay  costs  and  deliver  possession,  and  also 
afterwards  the  defendant,  a  mortgagee,  dies,  his  executors  may  revive 
the  suit  and  have  the  benefit  of  the  order  for  costs.  This  vv^as  de- 
cided in  Slowell  v.  Cole,  2  Vern.  396.  But  see  the  particulars  ff  the 
case,  for  they  were,  in  some  respects,  special.  The  heir  of  a  party 
may  revive.  1  Harr.  P.  299,  (6th  edit.)  Although  by  the  death  of 
the  cestui  que  trust  the  suit  abates  as  to  him,  yet,  if  there  be  a  decree 
against  him  and  his  trustees  to  convey,  &c.,  the  trustees  are  obliged 
to  convey,  for  the  death  of  either  party  makes  an  abatement  only  quoad 
himself.  lb.  297.  Where  there  is  a  decree  for  an  account,  and  then 
the  cause  abates  by  the  defendant's  death,  the  general  practice  allows 
the  representative  to  revive,  as  well  as  the  plaintiff,  both  being  in  the 
nature  of  plaintiffs.     Kent  v.  Kent,  Prec.  in  Ch.  197. 

When  the  contest  relates  to  real  estate  and  is  between  joint  heirs, 
and  one  dies  without  issue  or  will,  leaving  the  others  his  heirs,  no  re- 
vivor is  necessary.  It  is  otherwise  in  cases  of  personalty,  which  passes 
to  representatives.      Shields  v.  Craig's  Ex'rs,  6  Monroe's  Rep.  743.] 

Bill  for  discovery  merely  cannot  be  revived  after  answer  and  dis- 
covery. The  object  is  obtained  and  plaintiff  has  no  motive  for  reviving 
it.     Hosburgh  v.  Baker,  1  Peters,  236. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  72 

cases  where  a  suit  becomes  defective  merely,  and 
where  it  hkewise  abates.     It  seems,  however,  clear, 

"TO 

that  if  any  property,  or  right  in  litigation,  vested  in 
a  plaintiff,  is  transmitted  to  another,  the  person  to 
whom  it  is  transmitted  is  entitled  to  supply  the 
defects  of  the  suit,  if  become  defective  merely,  and 
to  continue  it  or  at  least  to  have  the  benefit  of  it,  if 
abated  (1).  It  seems  also  clear,  that  if  any  pro-  ll^^'l;^'^^^^^^, 
perty  or  right,  before  vested  in  a  defendant,  be-  ^^,'^^^^f  ^^ 
comes  transmitted  to  another,  the  plaintiff  is  en- 
titled to  render  the  suit  perfect,  if  become  defec- 
tive, or  to  continue  it,  if  abated  against  the  person 
to  whom  that  property  or  right  is  transmitted. 

The  means  of  supplying  the  defects  of  a  suit,  Bywhatbuia. 
continuing  it  if  abated,  or  obtaining  the  benefit  of 
it,  are,  1,  by  supplemental  bill ;  2,  by  bill  of  revivor ; 
S,  by  bill  of  revivor  and  supplement ;  4,  by  original 
bill  in  the  nature  of  a  bill  of  revivor  ;  and  5,  by  ori- 
ginal bill  in  the  nature  of  supplemental  bill.  The 
distinctions  between  the  cases  in  which  a  suit  may 
be  added  to,  or  continued,  or  the  benefit  of  it  ob- 
tained, by  these  several  means,  seem  to  be  the  fol- 
lowing : 

1.  Where  the  imperfection  of  a  suit  arises  from  supplemental 
a  defect  in  the  original  bill  (2),  or  in  some  of  the 

(1)  {Deas  V.  Thome,  3  Johns.  Rep.  643.] 

(2)  A  defect  in  a  suit  for  a  specific  performance  of  a  purchase  con-  ^applying  ade- 
tract  is  not  supplied   by  a  supplemental  bill  in  a   subsequent  suit,  in-  nal  suit. 
Blituted  before  a  decree  in  such  subsequent  suit,  by  a  person  claiming 

to  be  entitled  to  the  purchase  money.     Call'll  v.  Corrall,  1  Hare,  216. 

If  ci       .         i_  11    •  ■        ■      jcc         t    I  .  •      .    B'll  inconsistent 

If  a  person  files  two  bills  in  succession,  in  dinerent  characters,  against  with  a  prior  bill, 
the  same  party,  and  the  statements  in  the  subsequent  bill  are  inconsis-  cess^ry'^tis'toTe 
tent  with  the  statements  in  the  prior  bill,  they  will  be  both  dismissed  considi<red  sup- 

,  .  ploiuental. 

although  in  the  subsequent  bill  the  principal  inconsistent  statement  in 
the  prior  bill  is  alleged  to  be  erroneous,  and  although  there  is  a  prayer, 

8. 


74 


FRAME  AND  END  OF  THE     [CnAP.  I. 


M^d''tfme^b7°^'  proceedings  upon  it,  and  not  from  any  event  sub- 

fiiinaiiicsame.    g(3qu^nt  ^o  tlio  institution  of  the  suit  (1),  it  nnay  be 

added  to  by  a  supplemental  bill  merely  (<?)  (2). 


(c)  As  a  general  rule,  it  has  been  laid 
down,  thai  events  which  have  happen- 
ed eubspquently  to  the  filing  of  the 
original  bill  ought  not  to  be  made  the 
subject  of  amendment,  but  tiiat  they 
should  be  brought  before  the  court  by 
a^  supplemental  bill.  Humphreys  v. 
Humphreys,  3  P.  Wms.  349  ;  Brown 
V.  Higden,  1  Atk.  291  ;  3  Atk.  217 ; 


Pilldvgton  V.  Wigvell,  2  Madd.  R. 
240  ;  Ushorne  v.  Baker,  2  Madd.  R. 
379.  (2)  See  a  very  peculiar  case  on 
this  subject,  in  which  the  plaintiff, 
npon  facts  stated  in  the  answer  of 
the  defendant,  amended  his  bill  in 
order  to  meet  the  defence  vchich 
arose  therefrom.  Knight  v.  Matthews, 
1  Madd.  R.  566.  -^ 


Supplemental ' 
bill  in  respect  of 
matters  occur- 
red since   the 
filing  of  the  ori- 
ginal bill. 


Snpplemental 
bill  iig:ainst  the 
persfjnal  repre- 
sentative of  a  de- 
fendant who 
died  without  ha- 
Ting  appeared. 


Snpplemental 
bill. 


that  such  subsequent  bill  nriRy,  if  neces.?ary,  be  considered  supplemen- 
tal to  the  prior  suit.     Blackburn  v.  Staniland,  9  Jur.  1027. 

(1)  Where  there  is  a  trmsfer  of  interest  pending  suit,  a  supple- 
mental bill  may  be  filed  against  the  purchaser.  (Hoxie  v.  Car  el  al.,  1 
Sumner's  Rep.  178.  173.     See  further,  p.  69,  note,  supra.) 

Where  an  original  bill  is  filed  for  a  dissolution  of  a  partnership  on 
the  ground  of  misconduct,  other  acts  of  misconduct  occurred  subse- 
quently to  the  filing  of  the  original  bill  should  ha  made  the  subject  of 
a  supplemental  bill.  And  where  new  matter  which  occurred  subse- 
quently to  the  filing  of  the  original  bill  is  introduced  by  amendment, 
this  objection  may  be  taken  by  the  defendant  even  in  his  answer,  if 
he  insists  on  the  same  advantage  as  if  he  had  demurred  or  pleaded 
thereto.     Wray  v.  Hutchinson,  2  M.  &  K.  235. 

When  one  of  the  defendants  to  an  original  bill  dies  without  having 
appeared  to  it,  the  proper  course  is  to  bring  his  personal  representative 
before  the  court  by  a  supplemental  bill ;  and  if  there  are  no  new  facts, 
except  the  fact  of  his  dtath,  to  be  brought  before  the  court,  and  his 
death  does  not  alter  the  interest  of  any  of  the  other  defendants,  it  is 
not  necessary  to  make  them  parties  to  such  bill.  Collins  v.  Collins,  6 
Jur.  49,  V.  C.  E. 

(2)  [Sanders  v.  Frost,' 5  Pick.  Rep.  275;  Barjieldv.  Kelly,  4  Russ. 
355 ;  King  v.  Sullock,  2  Sim.  469  ;  Candler  v.  Pettit,  1  Paige's  Ch. 
Rep.  168.]       ,^ 

A  strictly  supplemental  bill  is  always  founded  on  facts  that  occur  since 
the  filing  of  the  bill.  These  may  be  necessary  to  aid  complainant  in 
obtaining  the  relief  sought,  or  new  or  additional  relief.  It  is  laid  down 
as  a  rule  in  Candler  v.  Pettit,  1  Paige's  Ch.  Rep.  169,  if  the  original 
bill  entitles  complainant  to  one  kind  of  relief,  and  the  facts  subse- 
quently occur  to  entitle  him  to  other  or  more  extensive  relief,  he  may 
have  such  relief  by  setting  out  the  new  matter  in  the  form  of  a^sup- 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  74 

Thus  a  supplemental  bill  may  be  filed  to  obtain  a       [62] 

pli^menUl  bill.  It  may  be,  this  principle  is  stated  too  broadly.  But 
the  court  will  not  permit  a  party  tn  tile  two  original  bills,  and  carry  on 
two  suits  for  the  sane  debt;  {Eager  w.  Price,  2  Paige's  Rep.  333.) 
The  pxp'^nse  of  an  o  iginal  is  rnucti  gieater  than  a  supplemental  bill, 
and  tl.«  latter  "shuuld  be  used  when  it  can  equally  subserve  the  purposes 
of  j  istlL-e.  Hence  a  mortgagee,,  who  filed  an  injunction  bill  to  stay 
waste,  may  by  supplemental  bill,  after  debt  falls  due,  pray  the  addi- 
tional relief  of  a  foreclosure  and  sale  of  the  mortgaged  premises. 
{Allen  V.  Taylor  el  al,  2  Green's  Ch.  Rep.  (New  Jersey,)  436—7,  435.) 

Jf  a  bill  be  entirely  defective,  a  suppleinental  bill  founded  on  subse- 
quent facts,  cannot  aid  it.  But  if  ihere  is  any  ground  to  sustain  it 
ev^n  for  temporary  relief,  the  court  having  possession  of  the  cause 
may  retain  it  for  the  more  general  and  important"  purposes  of  the  bill, 
and  allow  a  supplementnl  bilJ  to  be  fi  ed.  {Edgar  v.  Clevergtr,  2 
Green's  (New  Jersey)  Ch.  Rep.  2'il — 2.  238.)  And  see  cases  supra, 
1  Paige's  Rep.  200.  IKS,  and  p.  76,  nnte,  infra. 

[VViicre  much  expense  has  been  incurred  in  the  suit,  and  it  appears 
defective  in  the  form  at  the  hearing,  the  court  will  direct  the  cause  to 
stand  over,  with  liberty  to  file  a  supplemental  bill  to  correct  the 
form.   .Mutter  v.  Chauiel,  5  Russ.  42] 

So,  if  on  hearing,  it  appear  that  tlie  proper  parties  are  not  in,  com- 
plainant may  be  permitted  to  file  a  supplem.ntal  bill  to  bring  before 
the  court  the  iit'ce>sary  parties  ;  as,  on  bill  by  heirs  at  law  against 
exicut  rs,  for  account  and  distribution,  to  ascertain,  contribute,  and 
pay  legacies,  &c.,  complainants  may  have  the  proper  parties  before 
•  the  court  to  enable  them  to  have  an  account  of  all  the  legacies  which 
are  still  a  charge  on  the  real  estate,  and  will  be  pennitlltd  to  file  such 
bill  ;  or,  they  may  take  a  reference  to  take  such  account  on  procuring  . 
the  written  agreeim  nt  or  consent  of  the  per.-onal  representatives  of 
the  deceased  egatees  to  come  in  be  ore  the  master  and  litigate  their 
claims,  and  to  be  bound  by  such  decree  as  may  be  made  in  the  cause, 
in  the  same  manner  as  if  t'ey  were  originally  made  parties.  {Jznkins 
V.  Freyer,  4  I'aige's  Rep.  62.  47.;     tSee  turiher  to  parties,  note,  infra. 

A  supplemental  bill  cannot  be  filed  to  an  original  bill,  on  which  no 
Bubpoenas  have  been  terved.     {Steuari  v.  Nichols,  Tamlyn,  307.) 

It  IS  filed  on  leave.  But  the  irregularity  of  filing  it  without,  will 
be  deemed  waived;  it  has  been  held,  by  voluntary  app 'arance  and 
demurrer.  {AUtnv.  Taylor,  2  Green's  Ch.  Rep.  (New  Jersey)  437.  435.) 

But  in  Pedrick  v.  While  elai,  1  Metcalf's  Rep.  (Mass.)  76—9,  on 
demurrer  to  su,  plemental  bill  filed  of  cour>e,  alter  issue,  proofs  and 
publication,  the  court  say,  that  it  must  be  filed  by  leave  of  the  court 
on  Eutficient  tause  shown;  that  the  fil  ng  it  alter  cause  at  issue 
and   publication  of  evidence  passed,  mi^ht  lead  to  great  delay  and 


74  FRAME  AND  END  OF  THE    [ChAP.  I. 

further  discovery  (/)  from  a  defendant,  to  put  a 
new  matter  in  issue,  or  to  add  parties,  where  the 
proceedings  are  in  such  a  state  that  the  original  bill 

75  cannot  be  amended  for  the  purpose  (g)  (1).     And 

(f)Boeve  v.  Skipwith,  2  Ch.  Rep.  (g)  Goodwin  v.  Goodwin,  3  Atk. 
142;  Usborne  v.  Baker,  2  Madd.  R.  370.  There  is  the  form  of  a  bill  of 
379.  this  nature  in  1  Pres.  Prac.  of  X^han. 

146. 


abuse,  and  operate  as  a  means  of  evading  many  of  the  salutary 
rules,  requiring  parties  to  set  forth  their  full  grounds,  and  procure  all 
the  evidence  they  respectively  rely  upon  be'^ore  publication.  In  order 
to  lay  the  foundatioti  for  filing  it,  it  ought  to  be  shown  to  the  satisfac- 
tion ef  the  court,  either,  1.  That  the  matter  relied  on  as  supplemental, 
lias  arisen  since  the  commencement  of  the  original  suit;  or  2.  That 
the  facts  relied  on  have  first  come  to  plaintiff's  knowledge,  or  have 
been  made  known  to  him  in  such  a  manner  that  he  could  avail  him- 
self of  them,  since  the  cause  has  passed  the  stage  in  which  he 
might  have  had  leave  to  amend  ;  or  3.  That  the  plaintiff  has  been 
prevented,  through  inadvertence,  misapprehension  on  the  part  of  him- 
self, or  his  agents  or  counsel,  or  by  some  other  cause  satisfactorily 
shown,  from  availing  himself  of  the  matter  proposed  to  be  introduced 
by  his  supplemental  bill,  at  an  earlier  stage  of  the  cause.  The  bill 
must  be  confined  to  such  matter  and  be  verified  by  affidavit,  or  other 
satisfactory  proof.  Whether  the  objection  to  a  bill  filed  without  leave, 
should  be  by  demurrer  or  motion  to  dismiss,  was  a  question  not  de- 
cided in  this  case,  because  the  plaintiff  moved  for  leave  to  file  such 
'^  bill,  and  the  court  considered  it  not  too  late,  if  sufficient  cause  were 
shown,  to  sustain  it.     lb. 

[A  supplemental  bill  ought  to  be  filed  as  soon  as  the  new  matter 
sought  to  be  inserted  therein  is  discovered.  And  if  the  party  proceeds 
to  a  decree  after  the  discovery  of  the  facts  upon  which  the  new  claim 
is  founded,  he  will  not  be  permitted  afterwards  to  file  a  supplemental 
bill  in  the  nature  of  a  bill  of  review  founded  on  such  facts.  Pendle- 
ton v.  Fay,  3  Paige's  Ch.  Rep.  204.] 

So,  where  complainant  at  the  coming  in  of  defendant's  answer 
is  apprized  of  a  stranger's  interest  in  the  subject  of  the  suit,  and  awaits 
until  decree,  he  will  not  be  permitted  to  bring  him  before  the  court  by 
supplemental  bill.  Quackenbush  v.  Leonard,  10  Paige's  Rep.  133 — 4. 
131. 
Supplemental  0)  ^^  ^  plaintiff,  when  his  cause  is  in  such  a  state  that  he  cannot 

bill  to  put  in  ia-    amend  his  bill,  discovers  new  matter  which  may  tend  to  show  that  he 

•ue  matters 

which  it  ia  too   is  entitled  to  the  relief  prayed  by  his  bill,  he  may  file  a  supplemental 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  75 

this  may  be  done  as  well  after  as  before  a  decree  ; 

bill  for  the  purpose  of  puttlnff  the  new  matter  in  issue.     Crompton  v.  Jateto  introduce 

■^  "^  °  by  amendment. 

Womhwell,  4  Sim.  628, 

But  a  supp'emental  bill  cannot  be  filed  to  put  in  issue  matter  which,  Supplemental 

11  1  1.  1      .11       /.  1  .    •      1  ..     •  bill  to  put  in  is- 

although  not  discovered  till  after  the  orig;inal  cause,  was   at    issue,  g^g  matter 
might  have  been  introduced  into  the  original  bill  by  amendment,  by  ^^^'e  hee"n 'ntro- 
leave  of  the  court.      Colchmgh  v.  Evans,  4  Sim.  76.     Dias  v.  Merle,  ducedbyamend- 
4  Paige,  263.     If  so  filed,  defendant  should  ohject  by  demurrer,  plea, 
or  answer.       (Fullon  Bank  v.  Ni^w-  York  and  Sharon  Canal   Co.  4 
Paige's  Ch.  Rep.  131.  127.)      Videirifra. 

But  after  an  ori^'inal  cause  is  at  issue,  the  complainant  may  some- 
limes  file  a  supplemental  bill,  in  the  nature  of  a  bill  of  discovery,  to 
obtain  evidence  in  support  of  the  matters  put  in  issue  in  the  original 
suit,  of  which  evidence  he  was  not  apprized  at  the  time  of  filing  his 
replication.  But  that  is  strictly  a  bill  of  discovery  in  aid  of  the  origi- 
nal suit,  and  should  not  pray  relief.  Tlie  complainant  obtaining  the 
discovery  on  such  a  bill,  pays  defendant's  costs  as  in  other  bills  for  dis- 
covery merely.  The  bill  in  such  cases  is  in  the  nature  of  a  supple- 
mental suit  for  a  discovery,  rather  than  a  supplemental  bill  in  the 
original  suit.  Where,  however,  no  occurrence  has  taken  place  to 
change  the  rights  of  parties  tince  the  original  suit  was  commenced, 
the  rule  in  4  Sim.  76,  el  supra,  prevails.  Complainant  cannot  after  issue 
file  the  bill  to  put  in  issue  new  facts  that  might  have  been,  introduced 
by  amendment,  although  he  allege  they  were  unknown.  The  proper 
course  where  proofs  have  not  been  taken,  is  to  app'y  for  leave  to  with- 
draw his  replication  and  to  amend  his  bill.  Dias  v.  Merle,  Id.  262 — 3. 
259. 

Where  by  inadvertence  a  necessary  party  has  not  been  brought  be-  Supplemental 
fore  the  court,  and   the  suit  is  in   that   stage  that  the  plaintiff  cannot  purty. 
amend  iiis  bill,  he  may  file  a  supplemental  bill  for  the  purpose  of  sup- 
plying the  defect.     Semple  v.  Price,  10  Sim.  238. 

And  where  liberty  is  given  at  the  hearing  to  amend  a  bill  by  adding 
a  new  party,  the  plaintiff  may  bring  such  new  party  before  the  court 
by  a  supplemental  bill,  instead  of  by  amendment.  And  such  supple- 
mental bill  may  be  filed  against  the  new  party  alone  ;  for  as  both  suits 
will  come  on  for  hearing  together,  a  decree  may  be  made  between  the 
defendants  to  the  two  suits,  although  they  are  not  parties  to  the  same 
record.     Greenwoodv.  Atkinson,  5  Sim.  419. 

And  the  plaintiff  may  incorporate  in  such  bill  any  other  matter 
which  might,  independently  of  the  order  to  amend,  be  the  subject  of  a 
suppl  mental  bill.  Wood  v.  Wood,  4  Y.  &.  C.  Eq.  Ex.  135.  See 
note,  supra. 

[Where  a.  complainant  amends  his  bill  by  a  supplemental  one,  in 


75  FRAME  AND  END  OF  THE     [ChAP.  I. 

and  the  bill  may  be  cither  in  aid  of  the  decree,  that  it 

76  may  be  carried  fully  into  execution  (h),  or  that  pro- 
per directions  may  be  given  tipon  some  matter 
omitted  in  the  original  bill  (?)  (1),  or  not  put  in  is- 

(h)     Woodward     v.     Woodward,     cree.     See  Giffard  v.  Hort,  2  Sch.  & 
.  Dick.  33.     Or  it  may  be  filed  for  the     Lefr.  386. 
purpose  of  appealing  against  the  de-         (i)  3  Atk.  133. 

order'to  brinor  other  parties  before  the  court,  he  need  not  make  the  de-  . 

fendants  in  ttie  original  bill  parties  to  the  supplement  1  one.     Enswnrih 

V.  Lambert,  4  J.  C.   R.  t05  ;  iWKown  v.  Yerks,  6  lb.  450 ;  and  see 

•page  76,  fost.     Still,  if  any  of  the  original  defendants  have  an  interest 

in  the  supplemental  matter,  and  justice  requires  they  should  be  at  liberty 

to  join  issue  with  the  plaintitf  upon  the  fupplemont  1  pirts,  then  it  is 

fit  they  should  be  made  defendants.     Bijvall  v.  Atkins,  6  Madd.  369.-] 

A  mere  formal  party  to  the  original  is   not  a  necess  iry  party  to  a 

supplemental  bill,  where  the  ne.v  matter  does  not  affect   his  ngh's  or 

interests.     (Allen  v.  Taylor,  2  Green's  Ch.  Rsp.  435  437,  N.  J  ) 

Supplemental  If  a  supplemental  bill  is  fi  ed  by  the  assignees  of  a  bankrupt,  stating 

bill  to  supply  the     ,  .  ,       „,.  r  .i       ■    ■  '•      i  i  -.i  ^i         i      i     ■      •       i     , 

title  to  file  the      that  since  tiie  filing  of  the  original  biJ  they  had  obtamed  the  necessary 

original  bilL         consent  to  the  in.stituticn  of  the  3uit,  which  they  had  not  obtained  be- 
fore, such  supplemental  bill  is  demurrable  ;  for  it  is  not  the  ofB  '.e  of  a 
-  Buppleuiental  bill  to  supply  the  title  to  file  the  original  bill.     King  v. 
Tullock,  2  Sim.  469. 
Supplemental  Wiiere  a  suit  is  instituted,  on  the  ground  of  fraud,  to  restrain  an  ac- 

ferenT'^reTief  '    ^''^"  Commenced  on- a  bill  of  exchange,  and  pending  the  suit  the  plain- 

from  thatsoxight  [[ff  j^  ^jjg  action  recovers  payment,  the   plaintiff  in  equity  m  v  fie  a- 
by  the    original  ,        '^   ■'  '^  ,         , 

bill.  supplemental  bill,  praying  a  repayment  of  the  amount  recovered  and 

the  costs  of  the  action.     Pinkus  v.  Pe'ers,  5  Beav.  253. 

Supplemental  /j  ^  Accordinorly,  where  residuary  legra'ees   file  a   bill   aorainst  an 

bill  to  supply  a^^  ^  ■>  ^  Jo  o 

defect  in  an  ori-  executor,  praying  that  the  usual   accounts   muy   be   taken  ;  and  the 

"  executor,   by  his   answer  alleges  that  there   is  a  balance  due   to  him 

from  the  testator's  estate,  in  respect  of  partnership  transactions  be- 
tween them  ;  but  the  decree  does  nut  direct  the  ma?iter  to  investigate 
the  partnership  accounts,  but  only  to  take  the  common  accounts;  the 
legatees  may  file  a  supplemental  bill  praying  for  the  taking  of  the 
partnership  accounts,  in  order  that  the  balance  du'  from  the  executor 
may  be  ascertained  ;  for  such  a  bill  is  a  hill  filed  to  supply  a  defect  in 
the  former  bill,  and  in  aid  of  the  decree  in  the  former  suit.  Cropper 
V.  Knapman,  2  Y.  &  C.  Eq.  Ex.  338. 

But  where  a  creditor  of  a  testator  files  a  bill  against  the  executor, 
praying  that  the  usual  accounts  may  betaken,  and  the  executor  by  his 
answer  claims  to  be  a  creditor  of  the  testator,  by  payments  maJe  on 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  77 

sue  by  it,  or  by  the  defence  made  by  it  (k)  ;  or  to 
bring  formal  parties  before  the  court  (I)  :  or  it  may 
be  used  as  a  ground  to  impeach  the  decree,  which 
is  the  peculiar  case  of  a  supplemental  bill  in  the 
nature  of  a  bill  of  review,  of  which  it  will  be  neces- 
sary to  treat  more  at  large  in  another  place.  But 
wherever  the  same  end  may  be  obtained  by  amend- 
ment, the  court  will  not  permit  a  supplemental  bill 
to  be  filed  (m)  (1). 

When  any  event  happens  subsequent  to  the  time       L^^J 

•'  '  ^  *       _  Where  a  new 

of  filing  an  original  bill  {n),  which  gives  a  new  in-  J^'f/J^^"'  "■  "• 

terest  in  the  matter  in  dispute  to  any  person  not  a 

party  to  the  bill,  as  the  birth  of  a  tenant  in  tail,  or 

a  new  interest  to  a  party,  as  the  happening  of  some 

other  contingency,  the  defect  may  be  supplied  by  * 

{k)  Jones  V.  Jones,  3  Atk.  110.  Atk.  817  ;  see  p.  74,  note  (e). 

(i)  Ibid.  217.  (n)  1  Atk.  291 ;  3  Atk.  217  ;  see 

(to)  See  Baldwin  v.  Mackown,  3     above,  p.  74,  note  (e). 


his  account  to  more  than  the  amount  of  the  assets,  and  the  decree  does 
not  direct  the  master  to  report,  and  he  does  not  report  as  to  tliis  claim  ; 
and  the  creditor  files  a  supplemental  bill,  stating  that  the  payments 
made  by  the  executor  were  payments  made  on  account  of  partnership 
tran.sactions  between  the  testator  and  the  executor,  and  therefore  were 
made  partly  for  the  executor  himself,  and  praying  that  the  partnership 
accounts  may  be  taken,  so  that  it  may  be  ascertained  what  is  due  from 
the  executor  to  the  testator  for  the  payment  of  the,  debt  due  to  the 
creditor;  such  supplemental  bill,  according  to  the  decision  in  Grant  v. 
Grant,  6  Law  J.  Ch.  Rep.  (O.  S.)  145,  is  demurrable,  as  an  attempt 
to  begin  a  new  suit  after  having  failed  in  a  former  suit  for  the  same 
matter.  This  decitiion  seems  directly  opposed  to  that  in  Cropper  v. 
Knapman,  for  there  does  not  appear  tt)  be  any  substantial  distinction 
between  the  two  cases.  The  editor  conceives  that  the  decision  in 
Grant  v.  Grant  is  wrong. 

(1)  See  Parser  V.  Constable,  15  Law  J.,  C.  R.  (N.  S.)  16,  and 
Blackhurnw,  Slaniland,  9  Jur.  1027.  And  see  Colclough  v.  Evans,  4 
Sim.  76  ;  Gr.enwuol  v.  Atkinson,  5  Sim.  419  ;  Wood  v.  Wood,  4  Y.  & 
C  Eq.  Ex.  135,  supra,  p.  75,  note. 


77  FRAME  AND  END  OF  THE    [CnAP.  I. 

a  bill  which  is  usually  called  a  supplemental  bill  («?), 
and  is  in  fact  merely  so  with  respect  to  the  rest  of 
the  suit,  though  with  respect  to  its  immediate  ob- 
ject, and  against  any  new  party,  it  has  in  some 
'  ^  degree  the  effect  of  an  ori(]cinal  bill.     If  any  event 

Where  a  partial  ^  n  j 

rSi^e^s'^  I'aceT  ^appcus  which  occasious  any  alteration  in  the  in- 
terest of  any  of  the  parties  to  a  suit,  and  does  not 
deprive  a  plaintiff  suing  in  his  own  right  of  his 
whole   interest  in  the  subject,  as  in  the  case  of  a 

Jwntfff  u^de-    mortgage  or  other  partial  change  of  interest ;  or  if 

terlau  °^ ''"  ™*  &  plaintiff  suing  in  his  own  right  is  entirely  deprived 
of  his  interest,  but  he  is  not  the  sole  plaintiff,  the 
defect  arising  from  this  event  may  be  supplied  by 
a  bill  of  the  same  kind,  which  is  likewise  commonly 
•  termed,  and  is,  in  some  respects,  a  supplemental 

bill  merely,  though  in  other  respects,  and  especially 
against  any  new  party,  it  has  also  in  some  degree 
the  effect  of  an  original  bill  (1).  In  all  these  cases 
the  parties  to  suit  are  able  to  proceed  in  it  to  a  cer- 
[64]  tain  extent,  though  from  the  defect  arising  from  the 
event  subsequent  to  the  filing  of  the  original  bill 
the  proceedings  are  not  sufficient  to  attain  their 
full  object. 

t^!tVapi!dn-      If  the  interest  of  a  plaintiff  suing  in  autre  droit 

tiff  emng  in  autre  .•       i  i  •  i  i  i  i  •  i 

droir determines,  eutu'cly  Qetermmes  by  death  or  otherwise,  and 
some  other  person  thereupon  becomes  entitled  to 

(o)   It  may  here  be  remarked,  that  Adams  v.  Dowding,  2  Madd.  R.  53. 

such  subsequent  event  must  not  only  [In  this  case  it   is  said   to  be  seldom 

be  relevant,  but  material,  see  Milnef  necessary  to  file  a  supplemental  bill 

Y.  Lord  Harewood,  17  Ves.  144,  and  where  the  original  one  is   for  an  ac- 

of    such    a    nature,    that  the   relief  count.]      Mole  v.   Smith,  1  Jac.   & 

sought  in  respect  thereof  cannot  be  W.  665. 
obtained    under    the     original    bill. 

(1)  [Bignallv.  Atkins,  6  Madd.  369.] 


S.  HI.]  SEVERAL  KINDS  OF  BILLS.  7S 

the  same  property  under  the  same  title,  as  in  the 
case  of  new  assignees  under  a  commission  of  bank- 
rupt, upon  the  death  or  removal  of  former  assig- 
nees {p),  or  in  the  case  of  an  executor  or  admin- 
istrator, upon  the  determination  of  an  administration 
aurante  viinori  estate  (q),  or  pendente  lite,  the  suit 
may  be  likewise  added  to  and  continued  by  sup- 
plemental bill  (r-)  (1).     For  in  these  cases  there  is 

(p)  Anon.  1  Atk.  88  ;  S.  C.l  Atk.  (r)  lu  the  case  of  an  administra- 
571  ;  Brownv.  Martin,  3  Atk.  218.       tiou  determined  by  death,    a  bill  of 

(q)  See  Jones  v.  Basset,  IVec.  in  revivor  by  a  subsequent  administrator 
Ch.  174;  Gary's  Rep.  22  ;  Stubbsv.  has  been  admitted.  Owen\.  Curzon, 
Leigh,  1  Cox  R.  133.  2   Vern.   237  ;     Muggins    v.    York 

Build.  Comp.  2  Eq.  Ca.  Ab.  3. 

(1)  Mr.  Story,  in  Eq.  PI.  n.  2,  to  5  340,  thinks  there  is  no  well 
founded  distinction  taken  by  Lord  Redesdale,  between  the  cases  of  a 
determination  of  the  interests  of  a  plaintiff  suing  in  autre  droil,  and 
in  his  own  right,  and  cites  Coop.  Eq.  PI.  76,  who  insists  there  is  no 
such  distinction.  Story,  ibid,  and  n.  1,  to  )  349.  "  In  each  case  it 
would  seem  the  bill  should  be  an  original  bi  I,  in  the  nature  of  a  sup- 
plemental bill,  for  it  brings  forward  new  interests  by  new  parties." 
Ibid.  And  see  the  distinction  laid  do<vn  in  Sedgwick  v.  Cleaveland,  7 
Paige's  Rep.  287.  290  ;  Mills  v.  Hoag,  Id.  18.  And  yet  such  a  bill  is 
founded  on  formal  technical  principles,  rather  than  on  any  substantial 
difft-rence  from  the  former ;  the  prominent  distinction  beinyr  it  seems 
this,  that  the  latter  lies  when  ihe  same  parties  or  interests  are  before 
the  court ;  the  former,  when  new  parties  with  new  interests  arise  from 
events  since  the  suit  was  instituted.  Story,  Jd.  {  396,  el  seq.,  citing 
Cooper  Eq.  PI.  75,  76.  Mitf.  Eq.  PI.  63,  and  Sir  Th.  Plumer  Com- 
mentary, in  Adams  v.  D>wding,  2  Madd.  Rep.  63,  or  Mil  ford,  63,  64. 
72.  98,  where  it  is  lield  that  a  supplemental  bill  lies  when  any  event 
happens  after  the  filing  of  the  original,  which  gives  a  new  interest  in 
the  matter  in  dispu'e  to  any  person  not  a  party  to  the  bill.  But  iiere, 
though  usually  called  a  supplemental  bill,  and  is  so,  with  respect  to 
the  rest  of  the  suit,  yet  as  to  its  immediate  object,  and  a;:ainst  any 
new  party,  it  has  in  degree  the  effect  of  an  original.  The  bill  is  in 
nature  of  a  supplemental,  because  it  is  original  as  to  the  new  parties 
and  interests  ;  and  in  some  sort  supplemental  also  as  being  an  appen- 
dage to  the  former  bill  as  to  old  parties  and  interests.  Id.  }  3l6,  and 
see  7  Paige,  supra. 


79  FRAME  AND  END  OP  THE    [ChaP.  I. 

no  c?iange  of  interest  which  can  effect  the  ques- 
tions between  parties,  but  only  a  change  of  the 
person  in  whose  name  the  si^itmustbe  prosecuted  ;  ■ 
and  if  there  has  been  no  decree,  the  suit  may  pro- 
ceed, after  the  supplemental  bill  has  been  filed,  in 
the  same  manner  as  if  the  original  plaintiff  had 
continued  such,  except  that  the  defendants  must 
answer  the  supplemental  bill,  and  -either  admit  or 
put  in  issue  the  title  of  the  new  plaintiff.  But  if  a 
decree  has  been  obtained  before  the  event  on  which 
such  a  supplemental  bill  becomes  necessary, though 
the  decree  be  only  a  decree  nisi,  there  must  be  a 
£65]  decree  on  the  supplemental  bill,  declaring  that  the 
plaintiff  in  thfit  bill  is  entided  to  stand  in  the  place 
of  the  plaintiff  in  the  original  bill,  and  to  have  the 
benefit  of  the  proceedings  upon  it,  and  to  prosecute 
the  decree,  and  take  the  steps  necessary  to  render 
it  effectual  .(s). 
piaintfff-sufng^n      \^  d  solc  j^ldintiff  suing  Ifi  his  own  right  \s  de- 

his  own  risht  is-i/^i-ii-  -i  '• 

deprived  ot  his  privcd  01  his  wuole  mterest  m  the  matters  m  ques- 

whole  interest,     *  _  _  ■* 

r  bankrupt' o°^  tion  by  an  event  subsequent  to  the  institution  of  a 
msoivent  debt-  ^^^-^^  ^^  j^^  ^^^  cELSc  of  a  bankrupt  or  insolvent  deb- 
tor, whose  whole  property  is  transferred  to  assig- 
nees, or  in  case  such  a  plaintiff  assigns  his  whole 
interest  to  another,  the  plaintiff  being  no  longer 
able. to  prosecute  for  want  of  interest  (t),  and  his 

(s)   Brown  v.  Martin,  3  Atk.  218.  and   Porter  v.  Cox,  5  Madd.  80,  ia 

(t)  Upon  the  question  whetlier  the  which    revivor   seems   to  have  been 

baukriiptny  of  a   sole  plaintiff  is,  or  thought  necessary.     But  as  it  cannot 

ought  to  be  considered  an  abatement  be  stated  a  priori,  that  there  will  not 

of  a  suit,  some  difference  of  opinion  be  any  surplus  of  the  bankrupt's  es- 

has  prevailed.     See  Sellas  v.  Dnw-  tate   after  satisfaclion  of  the   credi- 

son,  rep.    1    Atk.,    Sand.     Ed.  263  ;  tors,  who  may  prove  under  the  com- 

note,  4  Madd.  171,  and  the  cases  of  mission,  it  seems  impossible  to  insist, 

Randall  v.  Mumjord,   18  Ves.  424,  even  where  a  plaintiff  suing  in  his 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  80 

assignees  claiming  by  a  title  which  maybe  litigated, 
the  benefit  of  the  proceedings  cannot  be  obtained 
by  a  supplemental  bill,  but  must  be  sought  by  an 
original  bill  (u)  in  the  nature  of  a  supplemental  bill, 
which  will  be  the  subject  of  discussion  in  a  subse- 
quent page. 

If  a  commission  of  bankrupt  issues  against  any 
nartv  to  a  suit,  or  he  is  discharged  as  an  insolvent        [6^] 

■I  «  '  '-'  Where  a  bill  Is 

debtor,  his  interest  in  the  subject  is,  unless  he  is  a  ^l^^^^'j; ^^7= "' 
mere    trustee,  generally  transferred  to  his  assig-  SeThVc'JSt. 
nces  (x)  (1);  and  to  bring  them  before  the  court 
a  supplemental  bill  isnecessaiy,  to  which  the  bank- 
rupt or  insolvent  debtor  is  not  usually  required  to 

own  right  becomes  a  bankrupt,  that,  (x)  9  Ves.  86;   1  Ves.  &  B.  547  ; 

as    a  general   rule,  the  suit   abates,  and  see,  as  to  the  exceptions,  Cope- 

And  the  truth  of  the  proposition  will  man  v*  Gallant,  1   P.  Wms.   314;  2 

be  more  apparent  from  what  is  fur-  P.  Wms.   318  ;    Ex   parte  Ellis,    1 

ther  stated  in  the  next  page  of  the  Atk.  101  ;  1  Atk.  159.  234;  6  Ves. 

text.  496 ;    Joij  v.    Campbell,  1   Sch.    & 

(m)  See'Harrison  v.  Ridley,  Com.  Lefr.  328;  Ex  parte  Martin,  19  Vea. 

Rep.  589.  491 ;    S.  C.  2  Rose,  B.  C.  331  ;  Ex 

parte  Gillett,  3  Madd.  28. 

(1)  [Moran  v.  Hnys,  1  J.'C.  R.  339.  Every  argument  which  goes 
to  sliow  an  insolvent  to  be  a  proper  party  before  his  discharge,  applies 
with  equal  force,  to  prove  that  his  assignees,  after  that  event,  arp 
equally  so.  They  stand,  in  relation  to  his  property,  precisely  in  the 
place  of  the  insolvent.  The  assignees  succeed  to  all  the  riglits  of  the 
iii:^olvent,  which,  in  behalf  of  the  creditor;!,  they  are  bound  to  protect 
and  defend.  They  have  the  same  interest  in  the  final  issue  of  the 
cause ;  and,  in  the  chiiracter  of  assignees,  they  are  entitled  to  be 
heard.  Deasv.  Thnrne,  3  J.  R.  651.  In  Osjrood  v.  Franklin,  2  J.  C. 
R.  16,  two  of  the  plaintiffs  had  been  discharged  under  an  insolvent  act, 
and  another  had  died.  The  course  taken  was  by  a  bill  of  revivor  and 
siipplement,  whereby  the  assignees  of  the  insolvents  were  made  defen- 
dants, as  well  as  the  executors  of  the  deceased  party.  It  was  ob- 
jectrd,  that  they  (the  assignees)  ought  to  have  been  plaintiffs  ;  but  the 
court  determined  the  assignees  could  not  be  compelled  to  be  plaintiffs. 
It  was  sufficient  for  the  merit  of  the  case  that  they  were  before  the 
court.] 


80 


FRAME  AND  END  OF  THE    [ClIAP.  I. 


81 


Where  a  bank- 
rupt plaintiff 
may  proceed 
himself  in  the 
suit. 


[67] 


be  a  party  (1),  although  a  bankrupt  may  dispute 
the  validity  of  the  commission  issued  against  him(?/). 
But,  if  plaintiff,  a  bankrupt  may  proceed  himself  in 
the  suit,  if  he  disputes  the  validity  of  the  commis- 
sion, or  a  bankrupt  or  insolvent  may  proceed  if  the 
suit  is  necessary  for  his  protection  (z),  or  if  his  as- 
signees do  not  think  fit  to  prosecute  the  suit,  and 
he  conceives  that  it  is  for  his  advantage  to  prose- 
Under  those  circumstances,  however, 


When  it  is,  and  ^       't.  /    \ 

when    it   is   not  CUtC   it  {(I) 


necessary  for  i      •  i  •  i       /»  i  i 

him  to  bring  his  he  must  Drmcr  the  assignees  beiore  the  court  by 

assignees  before  .  . 

the  court.         supplemental  bill,  as  any   benefit  which  may  be 
derived  from  the  suit  must  be  subject  to  the  de- 


(y)  The  commission,  however, 
cannot  be  actually  impeached  by  him 
in  the  suit ;  his  proper  mode  of  dis- 
puting its  validity  is  by  an  actiijn  at 
law,  or  by  a  petition  to  supersede  the 
same.      See   Hammond  v.  Attwood, 

3  Madd.  158 ;  and  see  Bryant  v. 
Withers,  2  Maule  &,  Seiw.  123  ;  15 
Ves.  468;  Ex  parte  M'Gennis,  18 
Ves.  289  ;  5.  C,  1  Rose,  B.  C.  60  ; 
Ex  parte  Bryant,  2  Rose,  B.  C.  1 ; 
Ex  pprte  Northam,  2  Ves.  &  B.  124  ; 
S.  C,  2  Rose,  B.C.  140 ;  Ex  parte 
Price,  3  Madd.  228  ;  Ex  parte  Ran- 
ken,  3  Madd.  371  ;  Ex  parte  Bass, 

4  Madd.  270 ;  Bayley  v.  Vincent,  5 
Madd.  48  ;  Ex  parte  Gale,  1  Glyn 
ScJ.  43. 


(z)  Anon.  1  Atk.  263  ;  1  Madd. 
R.  425.  And  this  seems  lobe  another 
reason,  why  it  cannot  be  a  general 
rule  that  the  bankruptcy  of  the  plain- 
tiff causes  an  abatement,  even  where 
he  sues  in  his  own  right  (2). 

(a)  Loiondes  v.  Taylor,  1  Madd. 
R.  423  ;  S.  C,  2  Rose,  B.  C.  365. 
432.  If  an  uncertificated  bankrupt 
should  be  desirous  that  a  suit  in  re- 
spect of  the  property  should  be  com- 
menced or  prosecuted,  and  his  as- 
signees should  refuse  to  adopt  that 
course,  it  seems,  that  to  attain  his* 
object,  he  must  petition  for  leave  to 
use  their  names  for  the  purpose  of 
proceeding,  he  indemnifying  them. 
5  Ves.  587.  590  ;  Benfield  v.  Solo- 
mons, 9  Ves.  77  ;  3  Madd.  158. 


<1)  [In  Collins  V.  Shirley,  1  Russ.  &  M.  638,  a  bill  of  foreclosnre 
was  filed  against  Shirley.  He  had  taken  the  benefit  of  the  insolvent 
act ;  and  yet  he  was  made  a  party  with  his  assignees.  The  M.  R.  de- 
cided that  Shirley  had  been  made  a  party  improperly,  and  ought,  there- 
fore to  have  his  costs.] 

(2)  [A  bankrupt  cannot  file  a  bill  of  redemption  in  respect  of  his 
right  to  the  surplus.  But  where  he  has  a  clear  interest,  and  the  as- 
signees refuse,  the  court,  upon  petition  and  an  offer  of  indemnity,  will 
compel  them  to  let  him  use  their  names.  Spragg  v.  Binkes,  5  Ves.  690.] 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  81 

mands  of  the  assignees  {b),  unless  he  seeks  his 
personal  protection  only  against  a  demand  which 
cannot  be  proved,  or  which  the  person  making  the  ^^^ 

demand  may  not  think  fit  to  prove,  under  the  com- 
mission issued  against  the  bankrupt,  or  fi'om  which 
the  insolvent  debtor  may  not  be  discharged  (c). 

And  if  by  any  event  the  whole  interest  of  a  de-  who^efntefestof 

_-  .  -11  •  1  1^1  •     ^  ^  defendant  is 

fendant  is  entu'ely  determmed,  and  the  same  inte-  determined,  and 

•^  •'  1  1  •   1  1  vested  in  anoth- 

rest  is  become  vested  m  another  by  a  title  not  de-  erbya  tiue  not 

•'  dfnvedlromthe 

rived  from  the  former  party,  as  in  the  case  of  sue-  f"™" party, 
cession  to  a  bishopric  or  benefice,  or  of  the  deter- 
mination of  an  estate-tail,  and  the  vesting  of  a  sub- 
sequent remainder  in  possession,  the  benefit  of  the       [68] 
suit  against  the  person  becoming  entitled  by  the 
event  described  naust  also  be  obtained  by  original 
bill  in  the  nature  of  a  supplemental  bill :  though  if 
the  defendant  whose  interest  has 'thus  determined 
is  not  the  sole  defendant,  the  new  bill  is  supple- 
mental as  to  the  rest  of  the  suit,  and  is  so  termed 
and  considered.    But  if  the  interest  of  a  defendant  is  determine"  wt 
not  determined,  and  only  becomes  vested  in  another  another. 
by  an  event  subsequent  to  the  institution  of  a  suit, 
as  in  the  case  of  alienation  by  deed  or  devise,  or 

(b)  Although,  it  seems,  the  bank-  parties  thereto  by  supplemental  bill 

ruptcy  of  a  plaintiff,  suing  even  iu  within  a  limited  time  (1).      Williams 

his  own  right,  does  not,  at  least  as  a  v.  Kinder,  4  Ves.   387  ;  Randall  v. 

general   rule,   abate   the  suit,  it  un-  Mumford,  18  Ves.  424  ;  Wheeler  v. 

questionably  renders   it  defective,  18  JlfaZ/ns,  4  Madd.  171  ;  Porter -v.  Cox, 

Ves.  427  ;  and  this  court  upon  a  spe-  5  Madd.  80  ;  S.  C,  1   Buck,  B.  C. 

cial   application  will   dismiss  the  bill,  4C9  ;  Sharp  v.  Hullett,  2  Sim.  &Stu. 

(but,  as  it  seems,  without  costs,)  un-  496. 

less  the  plaintiff  make  his  assignees,  (c)   See  p.  81,  note  (a). 
or  upon  notice  they  make  themselves 

(1)  [Query — Whether  the  insolvent  might  not,  instead  of  proceed- 
ing by  supplemental  bill,  petition  the  court  to  let  liiin  use  their  names 
in  the  suit,  upon  being  indemnified  ?     Spragg  v.  Binkes,  6  Ves.  690.] 


82  FRAME  AND  END  OF  THE   [ClIAP.  L 

by  bankruptcy  or  insolvency,  the  defect  in  the  suit 
may  be  supplied  by  supplemental  bill,  whether  the 
suit  is  become  defective  merely,  or  abated  as  well 
as  become  defective  (d)  (1).     For  in  these  cases 

83  the  new  party  comes  before  the  court  exactly  in  the 
same  plight  and  condition  as  the  former  party,  is 
bound  by  his  acts,  and  7nay  be  subject  to  all  the 
costs  of  the  proceedings  from  the  beginning  of  the 
suit  (e). 

Where,  in  these      ijj  all  thcsc  cascs,  if  the  suit  has  become  abated 

cases,   the   suit  ;  ' 

ted.^'arweu^rs  as  well  as  defective,  the  bill  is  commonly  termed  a 
defective.         supplemental  bill  in  the  nature  of  bill  of  revivor,^ 

as  it  has  the  effect  of  a  bill  of  revivor  in  continuing 

the  suit  (2). 

(<f)  See  Rutherford  v.   Miller,  2  might  be  dismissed,  was  allowed  to 

Anstr.  458  ;  Russell -v.  Sharp,  1  Ves.  be  proper  under  the  circumstances  ; 

&  B.   500  ;   Whitcomb^  v.  Minchin,  which   affords  a  ground,  besides  the 

5  Madd.   91  ;  Foster  v.   Deacon,   6  reasons  already  intimated  in  relation 

Madd.   59 ;   Turner  v.   Robinson,   1  to    the   plaintiff  becoming  bankrupt, 

Sim.  &Stu.3.     In  the  cases  of  JVfo«-  so  far  as  they  apply,  for  presuming 

teith  V.    Taylor,    9   Ves.    615,    and  that  the  bankruptcy  of  the  defendant 

Rhode  V.  Spear,  4  Madd.  51,  a  mo-  does  not  abate  the  suit,  but  merely 

tion  on  the  part  of  the   defendant,  renders  it  defective, 

after  his   bankruptcy,  that  the    bill  (e)  1  Atk.  89. 

.  (1)  An  assignee  of  an  insolvent  defendant  should  not  bring  him- 

bill  by  an  as-     self  before  the  court  by  supplemental  bill,  until  he  has  applied  to  the 
fendMit"    *    ^   plaintiff  to  file  a  supplemental  bill  for  the  purpose  of  bringing  him 
(the  as&ignee)  before  the  court,  and  the  plaintiff  has  declined  or  neg- 
lected to  do  so.     Phillipps  v.  Clark,  7  Sim.  231. 

It  was  gaid  in  Slack  v.  Walcott,  3  Mason,  608,  that  a  devisee  may- 
maintain  an  original  bill  in  the  nature  of  a  bill  of  revivor,  and  thus 
obtain  the  benefit  of  the  original  proceedings,  as  well  before  as  after 
there  has  been  a  decree  in  the  original  suit.] 
(2)  [Westcott  V.  Cady,  6  Johns.  Ch.  R'-p.  334.] 
A  bill  by  A.  and  B,  was  filed  against  C.  to  obtain  conveyance  of 
realty  ;  and  after  a  replication  to  C.'s  answer,  A.  purchased  B.'s  in- 
terest in  the  subject,  and  died :  his  heirs  at  law  filed  a  supplemental 
bill  in  the  nature  of  a  bill  of  revivor  and  supplement,  to  continue  the 
proceedings  in  their  names,  as  substituted   complainants,  entitled  to 


exi^ciitor  or  u4» 
ministratur. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  83 

2.  Wherever  a  suit  abates  by  death,  and  the  in-  IJ'''"  °^  "'^- 
terest  of  the  person  whose  death  has  caused  the  abates  by  d..nth, 
abatement   is  transfnitted    to   that   representative  o«  th.-  deceHsid 

*  pas8<!St<)hi8  heir, 

which  the  law  gives  or  ascertains,  as  an  heir  at  law, 
executor  or  administrator,  so  that  the  title  cannot 
be  disputed,  at  least  in  the  court  of  chancery,  but 
the  person  in  whom  the  title  is  vested  is  alone  to 
be  ascertained,  the  suit  may  be  continued  by  bill 
of  revivor  merely  (1).     If  a  suit  abates  by  marriage 

the  whole  subject  matter ;  to  which  bill  C.  answered,  without  oath, 
admitting  the  fihng  the  original  b  II,  but  by  a  gf-neral  traverse  denying 
that  any  orher  allegations  we  e  true  to  his  knowlidg'e  or  belief.  On 
application  by  complainants  in  the  su|  plemental  brll  to  revive  and 
continue  proceedings,  it  was  held  that  under  the  23(1  Rule  of  the  court, 
that  as  the  facts  in  tl«e  suppleinema!  bill,  as  to  conip'aiiiants'  in'erest 
in  the  subject  matter  were  put  in  it^sue  by  the  answer,  the  heirs  should 
file  a  replication  to  such  answer,  and  take  proof  of  the  matter  put  in 
issue  in  connection  with  the  proofs  of  the  matters  upon  the  original 
bill ;  leaving  the  question  as  to  the  rijht  of  compUinants  to  have  the 
benefit  of  the  orijiiual  bill,  and  of  t'  e  subject  m  itti  r  of  the  dame  to  be 
finally  decided  at  the  hearing  upon  the  pniofa  in  the  cms  •.  And  un- 
less the  facts  put  in  issue  by  t'le  answer  to  the  suj)pk  mental  bill,  were 
proved  by  the  complainants  in  the  usual  way,  suih  bill  should  be  d  a- 
missed  at  the  hearing,  if  such  fac's  were  proved,  as  well  as  the 
matters  put  in  issue  upon  the  original  bill,  the  new  complainants  would 
be  entitled  to  tlie  same  relief  tliat  the  coinp!ainants  in  the  original  bill 
would  have  b  en  entitled  to,  if  they  had  boih  lived,  and  had  continued 
to  retain  their  interest  in  the  suhj  ct  matter  of  the  litigation  as  it  was 
at  the  commencement  of  the  suit.  (Duy  v.  Puller,  9  Paige's  Rep. 
646,  el  seq.  645.) 

(1)  Where  a  bill,  cmss  bill,  and  bill  in  nature  of  a  eupplemental  bill 
of  revivor,  between  the  same  parties  and  on  the  same  subject,  all  abate 
by  death  of  one  of  the  parties  in  a  pirtition  suit,  the  whole  proceed- 
ings may  be  revived  by  one  bill  of  revivor,  and,  therefore,  costs  of 
two  or  more  bills  will  not  be  allowed.  (  Wi^de  v.  Jenkins  el  al.,  4 
Pai' e's  R^p.  600.  481.) 

On  bill  for  account  and  distribution  of  an  estate,  if  a  distributor 
die,  the  suit  mu-t  be  revived  against  tiis  personal  representatives  not 
next  of  kin.     (Jenkins  v.  Freijer,  Id.  51.  47.) 

On  bill  of  revivor,  the  competency  of  the  parties  and  correctness  of 
the  frame  of  the  bill,  are  the  only  questions  before  the  court.     General 


^  FRAME  AND  END  OF  THE    [ChAP.  I. 

of  a  female  plaintiff,  and  no  act  is  done  to  affect 

objections  to  the  original  bill,  to  show  th«  case  not  of  equitable  cogni- 
zance should  be  rei^erved  until  after  the  revivor.  Administrator  and 
infant  son  and  sole  heir  of  a  deceased  defendant,  are  proper  parties  to 
tliis  bill  ;  for  they  are  both  proper  parties  to  meet  the  exigency  of  the 
original.  So  also  is  one  having  a  subsisting  interest  in  the  estate,  as 
the  immediate  mortgagor  from  whom  plaintiff  derives  title  as  mort- 
gagee, and  having  an  equal  interest  with  plaintiff,  to  litigate  the  va- 
lidity of  an  attachment,  made  by  intestate.  So  held  in^assachusetts, 
on  demurrer  to  injunctinn  bill  to  quiet  title.  {Bettesii.  Dana,  2  Sum- 
ner's Rep.  385—6.  383.) 

Upon  the  question  of  proper  parties  to  bill  to  revive  or  continue  the 
proceedings  on  the  death  or  change  of  parties  to  an  original  bill,  there 
has  been  conflict  of  opinion  amon^  practitioners,  observes.the  chancellor 
in  Farmers'  Loan  and  Trust  Co.  v.  Seymour,  9  Paige's  Rep.  642  ;  but 
having  examined  the  subject  to  ascertain  the  true  rule,  he  says: — 
"  Where  the  abatement  of  a  suit  is  caused  by  the  death  of  one  of 
sever.il  defendants,  and  the  suit  is  revived  by  T:he  complainant  in  the 
original  suit,  it  appears  to  be  only  necessary,  in  a  simple  bill  of  revi- 
vor, to  bring  the  representatives  of  the  decedent  before  the  court, 
without  making  the  surviving  defendants  parties  to  such  bill.  So  in 
the  case  of  the  death  of  one  of  several  complainants,  if  the  survivors 
are  in  a  situa'ion  to  entitle  them  to  revive  and  continue  the  suit  against 
his  representatives,  by  making  them  defendants  in  a  bill  of  revivor, 
Smith,  (in  1  Smith's  Practice,  394,}  says  it  is  not  usual  to  make  the 
other  defendants,  parties  to  such  bill.  In  this  last  case,  however, 
Daniel)  (3  Dan.  Ch.  Pr.  211.)  appears  to  suppose  that  the  original  de- 
fendants in  the  suif,  as  well  as  the  representatives  of  one  of  the  com- 
plainants, as  to  whom  the  suit  has  abated,  should  be  parties  to  the  bill 
of  revivor,  filed  by  the  surviving  complainants. 

"Without  stepping  to  inq  lire  wbich  is  right  in  the  particular  case 
supposed,  it  appears  to  be  perfectly  well  setrled,  that  when  a  bill  of 
revivor,  or  a  bill  in  the  nature  of  a  bill  of  revivor,  is  filed  by  any  one 
who  was  not  a  party  to  the  original  suit,  either  as  the  representative  of 
a  deceased  |  arty,  or  otherwise,  ail  the  other  parties  to  such  original 
suit,  who  have  any  interest  in  the  further  proceedings  therein,  should 
be  made  parties  to  such  bill,  either  as  complainants  or  defendants. 
The  tieneral  rule  which  applies  to  a  simple  bill  of  revivor  against  the 
representatives  of  one  of  several  defendants,  appears  to  hold  in  the 
case  of  a  supplemental  bill  in  the  nature  of  a  bill  of  revivor,  to  bring 
the  devisee  or  assign-^e  of  the  original  defendants  before  the  court." 
If  a  supplemental  bill  is  only  lo  bring  in  a  new  party  on  a  given  case, 
or  in  respect  of  antecedent  facts  on  the  record,  he  only  need  be  party 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  84 

the  rights  of  the  party  but  the  marriage,  no  title  nlate^by^mw* 

riage,   and  no 
■  other  act  is  done 

defendant.    But  if  it  is  to  bring  new  facts  before  the  cour*,  all  the  old  rights  of  the  par- 
defend;tnts  in  the  original  bill  should  be  parties  to  the  supplemental  '*^*- 
bill.     //). 

[The  Revised  Statutes  of  the  State  of  New- York  contain  provisions 
which  do  away  with  a  bill  of  revivor  in  many  instances,  and  simplify, 
in  other  respects,  the  practice  in  case  of  death. 

No  suit  in  chancery  is  to  abate  by  the  death  of  one  or  more  of  the 
complainants  or  defendants  when  the  cause  of  action  survives,  but, 
upon  satisfactory  suggestion  of  such  death,  the  suit  is  to  proceed  for 
or  against  the  surviving  parties.  2  R.  S.  184,  ^  107.  The  cases  in- 
tended to  be  embraced  by  this  section,  are  those  where  the  right  of  the 
deceased  party  vests  in  some  one  of  the  survivors ;  so  that  a  perfect 
decree  may  be  made  as  to  every  part  of  the  subject  of  litigation,  with- 
out any  alteration  of  the  proceedings  or  bringing  any  new  parties  be- 
fore the  court.  Such  is  the  case  of  a  suit  brouglit  by  or  against  two 
or  more  executors,  trustees  or  joint  tenants,  where,  on  the  death  of  one, 
the  whole  right  of  action  or  ground  of  relief  survives  in  favor  of  or 
against  the  other.  In  such  cases,  there  is,  in  fact,  no  abatement  as  to 
the  survivors ;  and  upon  a  proper  application  by  either  party,  on  affi- 
davit, showing  the  fact  of  the  death,  and  that  the  cause  of  action  has 
survived,  the  court  will  order  the  suit  to  proceed.  Leggelt  v.  Dubois, 
2  Paige's  Ch.  Rep.  212;  and  see  Brown  v.  Story,  lb.  694. 

No  bill  of  revivor  is  necessary  to  revive  a  suit  against  the  represen- 
tatives of  a  deceased  defendant ;  but  the  court  upon  a  petition,  may 
order  it  to  stand  revived.  2  R.  S.  184,  }  108.  This  section  provides 
for  another  class  of  cases  where  some  of  the  parties  survive,  and  the 
rights  of  the  parties  dying  do  not  survive  to  them,  but  some  other  per- 
sons become  vested  with  the  rights  and  interests,  or  are  subject  to  the 
liabilities  of  those  who  are  dead.  In  such  cases,  tTie  complainants 
may  proceed  without  making  those  persons  parties,  provided  a  decree 
can  be  made  between  ti)e  surviving  parties  without  bringing  such  per- 
sons before  the  court.  The  decree,  in  that  case,  will  not  affect  those 
in  whom  the  rights  of  the  deceased  parties  have  become  vested.  Leg' 
gelt  V.  Dubois,  supra. 

In  cases  where  a  complainant  dies,  and  the  cause  of  action  does  not 
survive,  his  representatives  may,  on  affidavit  of  such  death,  and  on  mo- 
tion in  open  court,  be  made  complainants  and  be  permitted  to  amend 
the  bill.  2  R.  S.  184,5116;  While  v.  BuIoid,2  Paige's  Ch.  Rep. 
475.     When  the  representatives  do  not  cause  themselves  to  be  made  ' 

complainants  within  eighty  days  after  such  death,  the  surviving  com- 
plainant may  proceed  to  make  them  defendants,  as  in  cases  where  the 
representatives  of  a   deceased  defendant  arc  made  parties.     2  R.  S. 

9 


8i  FRAME  AND  END  OF  THE    [ClIAP.  !► 

can  be  disputed  ;  the  person  of  the  husband  is  the 

5  117;  Wilkinson  V.  Parish,  3  Paige's  Ch.  Rep.  653.  If  there  be  no 
surviving  complainant,  or  such  an  one  neglects  or  refuses  to  proceed 
against  such  representatives,  the  court,  upon  petition  of  the  original 
defendant,  may  order  such  representatives  to  shovs?  cause  why  the  suit 
should  not  stand  revived  in  their  names  or  the  bill  be  dismissed,  so  far 
as  the  interest  of  such  representatives  is  concerned.  ^  118,  119.  If 
a  defendant  dies  where  the  cause  of  action  does  not  survive,  and  the 
complainant  neglects  or  refuses  to  procure  an  order  for  the  revival  of 
the  suit,  the  court  may  order  it  to  stand  revived  upon  the  petition  of  a 
siirviving  defendant  against  the  representatives  of  the  deceased  party. 
{  120,  121. 

These  provisions  of  the  statute,  authorizing  the  revival  of  a  suit  on 
motion  or  petition,  extend  only  to  those  cases  where,  by  the  former 
practice  of  the  court,  the  proceedings  could  be  revived  and  continued 
by  a  simple  bill  of  revivor.  Douglass  v.  Sherman,  2  Paige's  C.  R.  358. 
Under  the  above  provisions  a  suit  in  chancery  may  be  revived  by  a 
surviving  complainant  against  the  infant  representatives  of  a  deceased 
complainant.  Wilkinson  v.  Parish,  supra.  If  the  parties  against 
whom  a  suit  is  sought  to  be  revived  are  beyond  the  jurisdiction  of  tlie 
court,  or  cannot  be  found  lo  be  served  with  the  order,  a  formal  bill  of 
revivor  must  be  filed,  and  the  like  proceedings  had  to  obtain  their  ap- 
pearance as  are  required  in  the  case  of  absent,  concealed  or  non-resident 
debtors.     lb.    Partition  suits  are  embraced  by  these  sections.     lb. 

As  to  office  practice  and  service  under  these  provisions,  see  the 
sections  themselves  and  all  the  cases  above  referred  to ;  and  see  Pru- 
en  V.  Lunn,  5  Russ.  3. 

It  may  be  necessary  to  revive  a  suit  against  the  personal  representa- 
tives of  a  deceased  defendant,  who  has  disclaimed,  and  against  whom 
the  complainant  waives  all  relief.  Glassington  v.  Thwaites,  2  Russ. 
458. 

As  to  reviving  on  a  conditional  decree  against  a  defendant,  in  case 
one  of  the  complainants  dies,  see  Ex^rs  of  M'Gough  v.  Ex'rs  of  Han- 
ningion,  1  Hogan,  23, 

In  a  case  more  recently  decided  in  the  late  court  of  chancery  of  the 
State  of  New-York  than  those  above  quoted,  the  chancellor  draws  the 
following  distinctions  :  If  a  suit  abate  by  death  of  all  the  defeudantsj 
the  general  rule  is  strict  that  before  a  decree  or  decretal  order,  by 
wiiich  a  defendant  becomes  entitled  to  an  interest  in  the  further  con- 
tinuance of  the  suit,  neither  he  nor  his  representatives  can  sustain  a 
bill  of  revivor.  But  after  a  decree  the  suit  may  be  revived  at  the  in- 
stance of  a  defendant  or  his  representatives,  if  complainants  or  those 
who  represent  them,  neglect  to  revive  it.    "  The  New- York  revised 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  84 

sole  fact  to  be  ascertained,  and  therefore  the  suit 

- 

statutes,  2  R.  !S.  185,  have  given  some  rights  to  defendants  and  to 
the  survivor  of  several  defendants  in  the  revival  of  suits  which  they 
did  not  before  possess  ;"  but  its  provisions  do  not  extend  to  abatement 
by  death  of  a  sole  defendant  or  of  all  the  defendants,  before  they  have 
obtained  an  interest  by  decree  as  mentioned.  Where  personal  repre- 
sentatives of  a  deceased  party  are  only  entitled  to  relief  against  ad- 
verse party  upon  a  conveyance  to  him  of  real  estate  descended  to  heirs 
at  law  of  decedent,  the  lieirs  are  necessary  parties  to  a  bill  of  revivor 
filed  by  them.     (Souillard  et  al  v.  Dias,  9  Paige's  R.  394—5,  393.) 

As  to  statute  and  practice  in  New-Jersey  to  save  necessity  of  filing 
bills  of  revivor,  see  Ross  v.  Hatfield  et  al.  1  Green's  C.  R.  363,  364. 

If  a  defendant,  who  has  been  served  with  a  copy  of  the  bill  under  Revivor  on  the 
the  23d  order  of  August,  1841,  dies,  without  having  appeared,  his  dant without ha- 
persoual  representative  must  be  brought  before  the  court;  and  for  that  '"^S appeared, 
purpose,  an  original  bill,  and  not  a  bill  of  revivor,  is  necessary.     Har- 
dy v.  Hull,  14  Sim.  21. 

And  in  other  cases  where  a  person  named  as  a  defendant  dies  before 
appearance,  an  original  bill,  and  not  a  mere  bill  of  revivor,  ought  to 
be  filed  ai^ainst  his  representative.  Crowfoot  v.  Mzndtr,  9  Sim.  396. 
See  further  as  to  bill  of  revivor.  [Nicoll  v.  Roosevelt,  3  J.  C.  R.  60  ; 
Feomstcr  v.  Markham,  2  J.  J.  Marshall's  R.  303.  Where  the  cause 
of  action  against  a  deceased  party  does  not  survive,  but  some  tliird 
person  becomes  vested  with  his  interest  or  subject  to  his  liabilities,  the 
complainant  may  elect  to  proceed  without  reviving  the  suit  against 
the  representatives  of  the  deceased  party,  provided  a  perfect  decree 
can  be  made  between  the  survivors  without  bringing  such  representa- 
tives before  the  court,     Leggett  v.  Dubois,  2  Paige's  C.  R.  211. 

If  two  bring  a  suit  to  redeem  and  one  dies,  the  surriving  plaintiff 
and  heir  of  the  deceased  party  cannot  file  an  original  bill;  but  should 
proceed  by  bill  of  revivor.     Saunders  v.  Frost,  5  Pickering's  R.  275. 

See  more  as  to  bills  of  revivor,  p.  76,  77,  post,  and  notes  there. 

A  bill  of  revivor,  when  necessary,  may  be  filed  of  course  without 
any  order  of  the  court  granting  permission  to  file  such  bill.  Lewis  v. 
Bridi^man,  2  Sim.  R.  465 ;  Pendleton  r.  Fay,  3  Paige's  C.  R.  206. 

As  to  the  practice  upon  bills  of  revivor  in  Tennessee,  see  Lewis  r. 
Outlaw,  1  Overton's  R.  140. 

Upon  a  bill  of  revivor  in  Kentucky,  a  subpoena  is  served.  Stout  v. 
Higbee's  executors,  4  Monroe,  145] 

[Where  one  complainant  files  a  bill  of  revivor,  another  cannot  take 
the  same  course.  A  second  bill  would  be  stricken  off  the  files.  And 
even  a  defect  of  parties  in  the  first  bill  affords  no  reason  for  keeping 
the  second  on  file.    Livesey  v.  Livesey,  1  R.  &  M.  10.] 


[70] 


84  FRAME  AND  END  OF  THE    [ChAP.  I. 

may  be  continued  in  this  case  likewise  by  bill  of 
revivor  merely  (1). 
Ancient  practice      Whcu  a  suit  bccame    abated   after   a  decree 

where  a  suit  a-       .  n      i     /    /-s      •  •  i      ^i 

bated  after  a  de-  signed  and  cnrolled  (  f),  it  was  anciently  the  prac- 

creo  signed  and        3  v^    /  i 

enroued.  ^j^^g  ^q  rcvivc  tho  dccrcc  by  subpcBna  in  the  nature 
of  a  scire  facias  (g)  (1),  upon  the  return  of  which 
the  party  to  whom  it  was  directed  might  show 
•  cause  against  the  reviving  of  the  decree  (h),  by  in- 
sisting that  he  was  not  bound  by  the  decree  (i),  or 
that  for  some  other  reason  it  ought  not  to  be  en- 
forced against  him,  or  that  the  person  suing  the 
subpoena  was  not  entitled  to  the  benefit  of  the  de- 
cree. If  the  opinion  of  the  court  was  in  his  favor 
he  was  dismissed  with  costs.  If  it  was  against 
him  (j),  oYJf  he  did  not  oppose  the  reviving  of 
the  decree,  interrogatories  were  exhibited  for  his 

(/)  1  Ves.  182.  184.  (»')   Brown  v.  Vermuden,  1  Ca.  ia 

(g)  11  Ves.  311.  Ch.  272. 

(A)    See   1   Vern.  426  ;  Sayer  v.         (j)  1  Ca.  in  Ch.  273. 
Sayer,  Dick.  42. 

[A  purchaser  under  a  suit  cannot  revive.  Backhouse  v.  Middleton. 
Freem.  132.] 

(1)  As  noted  in  reference  to  the  doctrine  of  abatement  by  marriage, 
(ante,  p.  69,  note,  the  first  abates  even  after  decree  by  marriage  of  female 
complainant,  but  not  of  female  defendant  (see  further  ib. ;)  and  it  must 
be  revived  by  bill,  not  petition ;  as  the  statute  authorizing  summary  ap- 
plication by  petition  does  not  apply  to  such  abatement.  Where  defen- 
dant as  well  as  complainant  may  revive,  the  court  will  direct,  that  if 
complainant  do  not  revive  in  a  given  time  (say  60  days,)  defendant  shall 
be  at  liberty  to  file  a  bill  of  revivor.  {Quackenbush  v.  Leonard,  10 
Paige's  R.  133-4,  131.) 

(2)  [And  this  appears  to  be  still  the  practice  in  the  Irish  court  of 
chancery.  Cox  v.  IW Namara,  1  Hogan,  12.] 

In  Ohio,  it  is  settled,  that  a  bill  of  revivor,  or  petition  in  nature  of, 
is  the  appropriate  method  to  revive  a  decree  against  heirs  of  deceased 
respondent,  and  not  scire  facias,  which  is  a  more  legal  remedy  and 
procedure.  Curtis  v.  The  Heirs  of  Haion,  14  Ohio  R.  (Gnswold's) 
186-7,  185. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  84 

examination  touching  any  matter  necessary  to  the 
proceedings  (k).  If  he  opposed  the  reviving  of  the 
de.cree  on  the  ground  of  facts  which  were  disputed, 
he  was  also  to  be  examined  upon  interrogatories, 
to  which  he  might  answer  or  plead  ;  and  issue 
being  joined,  and  witnesses  examined,  the  matter 
was  finally  heard  and  determined  by  the  court. 
But  if  there  had  been  any  proceeding  subsequent 
to  the  decree  this  process  was  ineffectual  (/),  as  "^ 

it  revived  the  decree  only,  and  the  subsequent  pro- 
ceedings could  not  be  revived  but  by  bill ;  and  the 
enrolment  of  decrees  being  now  much  disused,  it 
is  become  the  practice  to  revive  in  all  cases,  indis-  Modem  practice. 
criminately,  by  bill  (^m). 

3.  If  the  suit  becomes  abated,  and  by  any  act  ^^d"]uppj;me'n°L 
beside  the  event  by  which  the  abatement  happens 
the  rights  of  the  parties  are  affected,  as  by  a  set- 
tlement (u),  or  a  devise  (o)  under  certain  circum- 
stances, though  a  bill  of  revivor  merely  may  con- 
tinue the  suit  so  as  to  enable  the  parties  to  prose- 
cute it,  yet  to  bring  before  the  court  the  whole  mat- 
ter necessary  for  its  consideration,  the  parties  must, 
by  supplemental  bill,  added  to  and  made  part  of 
the  bill  of  revivor,  show  the  settlement,  or  devise,       \J^\ 
or  other  act  by  which  their  rights  are  aflfected  (1). 

(k)  Anon.  2  Freem.  128.  426  ;  Pract.  Reg.  90,  Wy.  Ed. 

(0  Crosier  v.  Wister,  2  Ch.  Rep.         (n)  See  Merrywether  r.  Mellish, 

67;  Thorn  V.  Pitt,  Sel.  Ca.  in  Ch.  13  Ves.  161. 
54  ;  S.  C,  2  Eq.  Ca.  Ab.  180.  (o)  See  Rylands  v.  Latouche,  2 

(m)  See  Dunn  y.  Allen,  1  Vern.  Bligh,  P.  C.  566. 


(1)  Ross  V.  Hatfield  et  al.  1  Green's  C.  R.  365,  363.  [See  form  of 
Buch  bill,  Willis,  352  ] 

Mr.  Story  in  Eq.  PI.  note  1  to  }  387,  seems  to  think  that  an  original 
bill  in  nature  of  bill  of  revivor  and  supplement  (as  new  interests  are 
brou<;ht  forward)  might  be  more  proper,  than  a  bill  of  revivor  and 
supplement  under  which  Lord  Redesdale  has  put  his  illustration  in 
the  text. 


85  FRAME  AND  END  OF  THE  [ChAP.  I. 

And,  in  the  same  manner,  if  any  other  event  which 
occasions  an  abatement  is  accompanied  or  follow- 
ed by  any  matter  necessary  to  be  stated  to  the 
conrty  either  to  show  the  rights  of  the  parties,  or  to 
obtain  the  full  benefit  of  the  suit,  beyond  what  is 
merely  necessary  to  show  by  or  against  whom  the 
cause  is  to  be  revived,  that  matter  must  be  set  forth 
by  way  of  supplemental  bill,  added  to  the  bill  of 
revivor  (^?)  (1). 

86  4.  If  the  death  of  a  party,  whose  interest  is  not 
nature  o'f  bfiis  determined  by  his  death,  is  attended  with  such  a 

of  revivor. 

transmission  of  his  interest  that  the  title  to  it,  as 
well  as  the  person  entitled,  may  be  litigated  in  the 
court  of  chancery,  as  in  the  case  of  a  devise  of  a 
real  estate  (^),  the  suit  is  not  permitted  to  be  con- 
tinued by  a  bill  of  revivor.  An  original  bill,  upon 
which  the  title  may  be  litigated  (?*),  niust  be  filed  ; 
and  this  bill  will  have  so  far  the  effect  of  a  bill  of 
revivor,  that  if  the  title  of  the  representative  substi- 
tuted by  the  act  the  deceased  party  is  established, 
the  same  benefit  may  be  had  of  the  proceedings 
upon  the  former  bill  as  if  the  suit  had  been  contin- 
ued by  a  bill  of  revivor  (s). 

(p)  See  Russell  v.  Sharp,   1  Ves.  Huet  v.  Lord  Say  and  Sele,  Sel.  Ca. 

&,  Bea.  500.  in  Ch.  53. 

(q)  Backhouse  Y.    Middleton,    1         (s)   CZare  v.  TVorJeZZ,  2  Vern. 548  ; 

Ca.  in  Ch.  173;   S.  C,  3  Cli.  Rep.  1  Eq.  Ca.  Ab.  83  ;  Minshull  v.  Lord 

39,  and  2  Freem.  132;  Mosely,  44.  Mohun,  2  Vern.  672  ;  6  Bro.  P.  C. 

(r)  1  Eq.  Ca.  Ab.  2,  pi.  2  &  7 ;  36,  Toml.  Ed.  (2) 

(1)  *'Ifapt^rson  interested  under  a  will  files  a  bill  for  an  account 
against  the  executors,  not  seeking  to  charge  them  for  wilful  default, 
and  dies  pending  the  suit,  his  personal  representative  cannot  charge 
them  by  bill  of  revivor  and  supplement,  if  the  acts  complained  of  were 
known  to  the  deceased  plaintiff."     Garrett  v.  Noble,  6  Sim.  604. 

(2)  [It  hae  been  said,  in  Kentucky,  that  where  a  cause  survives 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  86?' 

5.  If  the  interest  of  a  plaintiff  or  defendant,  suing        [72] 

ir»i-  •!•  •!,  1111.  •  5.  Bills  in  then  a- 

or  deiendinff  ni  his  own  ri<i^ht,  wholly  determines,  ture  of  euppie- 

°  O       '  J  '  mental  biU». 

and  the  same  property  becomes  vested  in  another 
person  not  claiming  under  him,  as  in  the  case  of 
an  ecclesiastical  person  succeeding  to  a  benefice, 
or  a  remainder-man  in  a  settlement  becoming  en- 

against  the  reprr-sentativea  of  a  defendant  who  dies  before  a  decree, 
either  a  bill  of  revivor  or  original  bill  may  be  maintained.  Lijle  v. 
Bradfordil  Monroe's  R.  115.] 

In  New- York,  where  bill  was  filed  against  defendant  as  executrix 
of  her  deceased  husband  to  reach  property  she  had  received  as  execu- 
trix, but  which  in  equity  was  complainant's,  and  she  died  after  decree 
in  their  favor,  it  was  held  that  the  surviving  executor  of  the  husband, 
who  had  not  been  made  party,  could  be  brought  in  only  by  an  original 
bill  in  nature  of  bill  of  revivor  and  supplement ;  and  the  filing  of  a 
mere  bill  of  revivor  against  him  was  improper.  Ecertson  v,  Ogden, 
8  Paige  R.  276-7,  275. 

So  an  original  bill  in  nature  of  bill  of  revivor  and  supplereient  is  the 
proper  bill  where  complainant  assigns  all  liis  interest  in  the  suit  in  the 
premi.«es  in  controver.-^y,  and  dies;  his  grantee  cannot  revive  and  con- 
tinue by  a  simple  bill  of  revivor.  So  where  defendant  in  such  original 
suit  is  entitled  to  revive,  he  must  do  so  by  a  similar  bill,  as  he  cannot 
file  a  simple  bill  of  revivor  against  the  grantee  of  the  complainant  in 
that  suit.  A  defendant  in  a  suit  can  in  no  case  file  a  bill  to  revive 
when  adverse  party  neglects  to  revive,  unless  he  shows  he  has  an 
interest  in  the  revival  of  the  suit.  A  defendant  may  revive  in  all  cases 
after  a  decree  where  he  can  have  benefit  from  further  proceedings,  in 
case  adverse  party  will  not  revive,  as  defendaht  must  revive  before  he 
can  appeal  from  a  decree  against  him.  When  suit  abates  before  .bring- 
ing appeal,  it  follows  he  has  an  interest  to  revive  wherever  appeal  lies, 
and  where  he  would  be  absolutely  without  remedy  excepting  by  a  re- 
vival and  an  appeal.  (Anderson  v.  White  et  al.  10  Paige's  R.  578-9, 
675.)     See  p.  86-8,  infra. 

In  New-York,  if  by  death  of  a  party  to  an  appeal  to  the  chancellor 
(from  decision  of  a  surrogate,  circuit  judge  or  vice-chancellor  under 
the  late  organization  of  that  court,)  his  intere^^t  is  not  cast  upon  his 
heirs  or  personal  representatives,  the  proceedings  must  be  revived 
upon  a  petition  in  the  nature  of  a  bill  of  revivor  and  supplement. 
The  proper  mode  to  compel  the  new  parties  to  answer  such  petition 
and  the  petition  of  appeal  is  to  serve  a  subpcsna  as  in  the  case  of  a  bill 
of  revivor  and  supplement,  or  if  absentees,  by  ad\'€rtising  the  usual 
order.     Jauncey  etal.  v.  Rutherford,  9  Paige's  R.  279,  275,  el.  teq.  273. 


86  FRAME  AND  END  OF  THE   [ChAP.  I. 

titled  upon  the  death  of  a  prior  tenant  under  tlie 
same  settlement(^),  the  suit  cannot  be  continued 

87  by  bill  of  revivor,  nor  can  its  defects  be  supplied  by 
a  supplemental  bill.  For  though  the  successor  in 
the  first  case,  and  the  remainder-man  in  the  second, 
have  the  same  property  which  the  predecessor,  or 
prior  tenant,  enjoyed,  yet  they  are  not  in  many  cases 
bound  by  his  acts,  nor  have  they  in  some  cases 
precisely  the  same  rights.  But,  in  general,  by  an 
original  bill  in  the  nature  of  a  supplemental  bill  (1) 
the  benefit  of  the  former  proceedings  may  be  ob- ' 
tained(z^).  If  the  party  whose  interest  is  thus  deter- 
mined was  not  the  sole  plaintiff  or  defendant,  or  if 
the  property  which  occasions  a  bill  of  this  nature 
affects  only  a  part  of  the  suit,  the  bill,  as  to  the  other 
parties  and  the  rest  of  the  suit,  is,  as  has  been  be- 

Distinction  be-  forc  obscrvcd  Supplemental  merely. — There  seems 
two  bills  as  re-  to  bo  tliis  difference  between  an  orio^inal  bill  in  the 

garda    their  ei-  ~ 

^^"*-  nature  of  a  bill  of  revivor,  and  an  original  bill  in  the 

nature  of  a  supplement  bill.  Upon  the  first  the 
benefit  of  Ahe  former  proceedings  is  absolutely 
obtained,  so  that  the  pleadings  in  the  first  cause, 
and  the  depositions  of  witnesses,  if  any  have  been 
r731  taken,  may  be  used  in  the  same  manner  as  if  filed 
or  taken  in  the  second  caiise(a:)  ;  and  if  any  decree 
has  been  made  in  the  first  cause,  the  same  decree 
shall  be  made  in  the  secondly).     But  in  the  other- 

(t)  2  Eq.  Ca.  Ab.  3,  in  marg;  Os-  (x)  See  Houlditch  v.  Marquis  of 

home  V.  Usher,  6  Bro.  P.  C.  20,  Toml.,  Donegall,  1  Sim.  &  Stu.  491. 

ed.;   1   Bro.  P.    C.  205;    Lloyd    v.  (y)  CZore  v.  lVor<Ze«,  2  Vern.  548 ; , 

Johnes,  9  Ves.  37.  Minshull  v.    Lord  Mohun,  2  Vern  . 

(«)  9  Ves.  54,  55.  672  ;  1  Eq.  Ca.  Ab.  83  ;  1  Atk.  89. 

(1)  See  Woods  v.  Woods,  note  to  p.  119. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  87 

case  a  new  defence  may  be  made  ;  the  pleadings 

and  depositions(z)  cannot  be  used  in  the  same  man-  S8 

ner  as  if  filed  or  taken  in  the  same  cause  ;  and  the 

decree,  if  any  has  been  obtained,  is  no  otherwise 

of  advantage  than  as  it  may  be  an  inducement  to 

the  court  to  make  a  similar  decree  (a). 

The  voluntary  alienation  of  property  pending  a  ^^^''\ninuiiu. 
suit  by  any  party  to  it,  is  not  permitted  to  affect 
the  rights  of  the  other  parties  if  the  suit  proceeds 
with  out  disclosure  of  the  fact,  except  as  the  alienation 
may  disable  the  party  from  performing  the  decree  of 
the  court  (b).  Thus,  if  pending  a  suit  by  a  mort- 
gagee to  foreclose  the  equity  of  redemption,  the 
mortgagor  makes  a  second  mortgage,  or  assigns  the 
equity  of  redemption  an  absolute  decree  of  fore- 
closure against  the  mortgagor  will  bind  the  second 
mortgagee,  or  assignee  of  the  equity  of  redemption, 
who  can  only  have  the  benefit  of  a  title  so  gained 
by  filing  a  bill  for  that  purpose  (c).  But  upon  a 
bill  by  a  mortgagor  to  redeem,  if  the  mortgagee 
assigns  pendente  lite,  the  assignee  must  be  brought  [74] 
before  the  court  by  the  mortgagor,  who  cannot 
otherwise  have  a  re-conveyance  of  the  mortgaged 
property  (d).  The  bill  necessary  in  the  last  case  is 
merely  supplementary ;  but  in  the  former,  the  bill 

(z)  Earl  of  Peterhoroughy.  Duck-  the  text;  quoted  in   Story's   Eq.  PI. 

ess  of  Norfolk,  Prec.  iii  Chan.  212;  n.  1  to  §  350,  p.  402,  4th  ed. 
see  also    Coke  v.   Fountain,  1   Vern.         (h)  2  Ves.  &  B.  205,  20G  ;  4  Dow. 

413,  aiiid  City  of  London  V.  Perkins,  P.   C.    435.       [Cook  v.  Mancisso,  5. 

3   Bro.  P.  C.   602,  Toml.   ed.,   as  to  Jolins.C.  R.89.     Bat  Bee  L' Estrange 

reading  in  one  cause  depositions  taken  v.  Robinsott,  1  Hogan,  202.] 
iu  another.  (c)  2  Atk.  175;  11  Ves.  199. 

(a)  See  Lloyd  v.Johnes,9\es.  Jr.         (rZ)   11  Ves.  199  ;  and  see  Wether- 

37.     And    the    commentary  of   Ld.  ell  v.  Collins,  3   Madd.  2'».').     [Also 

Eldon,  Id,  54,  55,  on  the  passage  in  Metcalfe  v.  Pulcertoft,  2  V.  &.  B. 

200.] 


-^  FRAME  AND  END  OF  THE    [ChAP.  I. 

must  be  an  original  bill  in  the  nature  of  a  cross  bill, 
to  redeem  the  mortgaged  property.     If  the  party 
89  aliening  be  plaintiff  in  the  suit,  and  the  alienation 

does  not  extend  to  his  whole  interest,  he  may  also 
bring  the  alienee  before  the  court  by  a  bill,  which, 
though  in  the  nature  of  an  original  bill  against  the 
alienee,  will  be  supplemental  against  the  parties  to 
the  original  suit,  and  they  will  be  necessary  parties 
to  the  supplemental  suit  only  so  far  as  their  inter- 
ests may  be  affected  by  the  alienation  (c).  Gene- 
rally, in  cases  of  aWensition 2yendente  lite  the  alienee 
is  bound  by  the  proceedings  in  the  suit  after  the 
alienation,  and  before  the  alienee  becomes  a  party 
to  it(d);  and  depositions  of  witnesses  taken  after 
the  alienation,  before  the  alienee  became  a  party 
to  the  suit,  may  be  used  by  the  other  parties  against 
the  alienee  as  they  might  have  been  used  against 
the  party  under  whom  he  claims  (^). 

Having  considered  generally  the  distinctions  be- ^ 
[75]  tween  the  several  kinds  of  bills  -by  which  a  suit 
becomes  defective  or  abated  may  be  added  to  or  con- 
tinued, or  by  which  the  benefit  of  the  suit  may  be 
obtained,  it  remains  in  this  place  to  consider  more 
particularly  the  frame  of  the  first  three  of  those 

(c)  There  is  an  instance,  in  which  (d)  It  may  be  observed,  however, 

the  court,  in  a  case  of  this  kind,  al-  that  the  alienee   may  by  supplemen- 

lowed  an  alienee  of  a  plaintiff  to  par-  tal   bill,  in  the  nature  of  an  original 

ticipate  in  certain  interlocutory  pro-  bill,  make  himself  a  party  to  the  suit 

ceedings,  without  previously  requiring  (1).     Foster  v.  Deacon  6  Madd.  59  • 

a  supplemental  bill  to  be  filed  for  the  and  see  Sinks  v.  Binks,  reported  2 

purpose  of  making  him  a  party  to  the  Bligh,  P.  C.  593,  note, 

suit.  Toosey  v.  Burchell,  1  Jac.  R.  (e)  See  Garth  v.  Ward,  2  Atk.  174. 
159. 

« 

(1)  See' note  to  p.  82. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  89 


90 

Frame  of  snp- 


kinds.     The  other  two  will  form  part  of  the  subject 
to  be  considered  under  the  next  head. 

1.  A  supplemental  bill  must  state  the  original  ^ 
bill  (1),  and  the  proceedings  thereon ;  and  if  the  &TproS 
supjJlemental  bill  is  occasioned  by  an  event  subse- 
quent to  the  original  bill,  it  must  state  that  event, 
and  the  consequent  alteration  with  respect  to  the 
parties  ;  and,  in  general,  the  supplemental  bill  must 
pray,  that  all  the  defendants  may  appear  and  answer 
to  the  charges  it  contains.  For  if  the  supplemental 
bill  is  not  for  a  discovery  merely,  the  cause  must  be 
heard  upon  the  supplemental  bill  at  the  same  time 
that  it  is  heard  upon  the  original  bill,  if  it  has  not 
been  before  heard  ;  and  if  the  cause  has  been  before 
heard,  it  must  be  further  heard  upon  the  supple- 

(1)  The  49th  order  of  Aug.  1841,  declares,  that  "it  shall  not  be  Contents  of  « 
necessary  in  any  supplemental  bill  to  set  forth  any  of  the  statements  bin?'^™*^° 
in  the  pleadings  in  the  original  suit,  unless  the  special  circumstances 
of  the  case  may  require  it." 

"Ail  that  is  required"  in  a  supplemental  bill  "is,  that  the  plaintiff 
should  state  so  much  of  the  case  as  shpws  that  there  was  an  equity." 
And  in  a  case  where  he  states  that  an  injunction  has  been  granted 
against  the  interference  of  certain  directors  with  the  funds  of  a  com- 
pany, he  states  sufficient  to  show  that  there  was  an  equity  for  restrain- 
ing a  director  subsequently  elected  from  joining  in  interfering  with 
those  funds.      Vigers  v.  Lord  Audley,  9  Sim.  72. 

[Seethe  form  of  a  "supplemental  bill  to  obtain  further  discovery 
from  a  defendant,  to  put  new  matter  in  issue  and  add  parties,  where 
the  proceedings  are  in  such  a  state  that  the  original  bill  cannot  be 
amended  fur  that  purpose."  Willis,  326.  and  observe  the  notes  there. 
Also,  for  other  forms  of  supplemental  bills,  see  Equity  Drafts.  ('Jd 
edit.)  619,622,  523,  525,  526,  527,  528.  Also  a  supplemental  bill  in 
aid  of  a  decree.     Willis,  340.] 

The  practice  in  New-Jersey  is  not  to  reiterate  substantially  the 
charges  of  the  original  bill,  but  set  them  ont  by  way  of  reference  and 
charge  the  new  and  additional  facts  by  way  ot  supplement.  Edgar  v. 
Clevenger,  2  Green's  C.  R.  (N.  J.)  465,  464. 


90  FRAME  AND  END  OF  THE     [ClIAP.  I. 

mental  matter  (/).  If  indeed  the  alteration  or 
acquisition  of  interest  happens  to  a  defendant,  or  a 
person  necessary  to  be  made  a  defendent,  the  sup- 
plemental bill  may  be  exhibited  by  the  plantifF  in 
the  original  suit  against  such  person  alone,  and 
may  pray  a  decree  upon  the  particular  supplemental 
matter  alleged  against  that  person  only  (g)  ;  un- 
less, which  is  frequently  the  case,  the  interests  of 

91  the  other  defendants  may  be  affected  by  that  decree. 
[76]  Where  a  supplemental  bill  is  merely  for  the  pur- 
pose of  bringing  formal  parties  before  the  court  as 
defendants,  the  parties  defendants  to  the  original 
bill  need  not  in  general  be  made  parties  to  the  sup- 
plemental (h)  (1). 

(/)  2  Madd.  R.  60.  (h)  See  Brown  t.  Martin,  3  Atk. 

(g)  See  Brown  v.  Martin,  3  Atk.     217.  (See  pp.  74,  75  and  notes,  supra. 
217. 


Parties  to  •  iup- 


(1)  Where  a  bill  is  filed  by  one  of  two  next  of  kin  against  the  exe- 
plemental  bill,  cutors  of  a  testator,  and  in  consequence  of  an  objection  taken  by  the 
answer  of  the  executors  for  want  of  parties,  a  supplemental  bill  is 
afterwards  filed  to  bring  another  next  of  kin  before  the  court,  the 
executors  must  be  parties  to  the  supplemental  bill,  in  order  that  they 
may  have  an  opportunity  of  stating  upon  the  pleadings  any  case  they 
may  have  as  against  such  other  next  of  kin.  Jones  v.  Howells,  and 
Jones  V.  Godsall,  2  Hare,  342. 

Where  one  of  several  co-plaintiffs  in  an  original  suit  mortgages  his 
interest  and  becomes  insolvent,  defendants  in  such  original  suit  who 
are  trustees  for  the  plaintiffs  are  necessary  parties  to  a  supplemental 
bill  filed  by  the  other  co-plaintiffs  against  the  mortgagee  and  provisional 
assignee ;  for  otherwise  the  accounting  parties,  the  trustees,  might 
not  know  till  the  hearing  to  whom  they  were  to  account.  ,  Fearij  v. 
Stephenson,  1  Beav.  42. 

In  order  to  determine  a  question  as  to  parties  to  a  supplemental  bill 
depending  on  facts  alleged  in  the  original  bill,  the  court  is  bound 
to  look  at  the  allegations  in  the  original  bill.  Pinkus  v.  Peters,  5 
Beav.  253. 

On  this  subject  see  also  Greenwood  v.  Atkinson,  note  to  p.  75,  supra^ 
and  Collins  v.  Collins,  note  to  p.  74,  supra. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  91 

2.  A  bill  of  revivor  must  state  the  original  bill  (1),  ~f  ^revT^rf^'Jid 
and  the  several  proceedinfrs  thereon,  and  the  abate-  thereoT''^ 
ment ;  it  must  show  a  title  to  revive  (i),  and  charge, 
that  the  cause  ought  to  be  revived,  and  stand  in 
the  same  condition  with  respect  to  the  parties  in 
the  bill  of  revivor  (1)  as  it  was  in  with  respect  to 
the  parties  to  the  original  bill  at  the  time  the  abate- 
ment happened  ;  and  it  must  pray  that  the  suit  may 
be  revived  accordingly.  It  may  be  likewise  neces- 
sary to  pray  that  the  defendant  may  answer  the  bill 
of  revivor,  as  in  the  case  of  a  requisite  admission  of 
assets  by  the  representative  of  a  deceased  party  (A-). 

(i)  Com.  Rep.  590.  such  a  bill,  Willis,  345.]     Prac.  Reg. 

(*)    [Douglat     V.     Sherman,     2     90,  Wy.  Ed. 
Paige's  C.  R.  358.     See  the  form  of 

(1)  The  49th  order  of  Aug.   1841,  declares,  that  "it  shall  not  be  Contentt  of  • 
necessary  in  any  bill  of  revivor  to  set  forth  any  of  the  statements  in 
the  pleadings  in  the  original  suit,  unless  the  special  circumstances  of 
the  case  may  require  it." 

Prior  to  this  order,  it  was  necessary  that  a  bill  of  revivor  against  Kecesiity  for 
new  parties  should  set  forth  so  much  of  the  orijiinal  bill  as  shows  the  to°r^T^Te. 
plaintiff's  title  to  revive :   otherwise  it  was  demurrable.     Phelps  v. 
Sprowle,  4  Sim.  318. 

And  even  now  it  is  necessary  for  a  plaintiff  in  a  bill  of  revivor  to 
state  enough  to  show  his  title  to  revive  the  original  suit  against  the 
defendant  to  the  bill  of  revivor,  and  the  precise  character  in  which  the 
defendant  is  brought  before  the  court.  For  the  statements  of  the  bill 
of  revivor  cannot  be  explained  by  importing  into  it  the  statements  of 
the  original  bill :  for  if  that  were  allowed,  the  defendant  to  the  bill  of 
revivor  could  not  safely  demur  until  he  had  taken  a  copy  of  the  origi- 
nal bill.     Grijfuhs  v.  Rickitis,  3  Hare,  484. 

(1)  If  a  defendant  dies,  having  appointed  two  executors,  and  only  Executor  who 

one  of  them  proves,  it  is  sufficient  for  the  plaintiff  to  revive  the  suit  ^"^  °°'  Pi'o^e"* 
'  '^  not  a  neceisary 

against  that  executor.     Strickland  v.  Sirickland,  12  Sim.  463.  party. 

When  the  suit  has  abated  by  tiie  de^th  of  a  co-plaintiff,  whose  right  where  the  par- 
devolves  to  his  representatives,  it  can  only  be  revived  by  a  bill,  to  ^^'  l'^i^l°J^^'. 

which  these  representatives,  the  other  plaintiff:^,  and  all  the  defendants  ceasary  parties 

to  a  bill  of  revi' 

to  the  original  bill  are  parties.     Cave  v  Cork,  12  Law  J.  (N.  S.)  166,  vor. 
V.  C.  B. 


[77] 


92  FRAME  AND  END  OP  THE    [ChAP.  L 

In  this  case,  if  the  defendant  does  admit  assets,  the 
cause  may  proceed  against  him  upon  an  order  of 
revivor  merely ;  but  if  he  does  not  make  that  ad- 
mission, the  cause  must  be  heard  for  the  pui-pose  of 
obtaining  the  necessary  accounts  of  the  estate  of 

93  the  deceased  party  to  answer  the  demands  made 
against  it  by  the  suit ;  and  the  prayer  of  the  bill, 
therefore,  in  such  case  usually  is,  not  only  that  the 
suit  may  be  revived,  but  also,  that  in  case  the  de- 
fendant shall  not.  admit  assets  to  answer  the  pur- 
poses of  the  suit,  those  accounts  may  be  taken,  and 
so  far  the  bill  is  in  the  nature  of  an  original  bill. 
If  a  defendant  to  an  original  bill  dies  before  putting 
in  an  answer,  or  after  an  answer  to  which  exceptions 
have  been  taken,  or  after  an  amendment  of  the  bill 
to  which  no  answer  has  been  given,  the  bill  of  re- 
vivor, though  requiring  in  itself  no  answer,  must 
pray  that  the  person  against  whom  it  seeks  to  revive 
the  suit  may  answer  the  original  bill,  or  so  much  of 
it  as  the  exceptions  taken  to  the  answer  of  the 
former  defendant  extend  to,  or  the  amendment 
remaining  unanswered. 

Upon  a  bill  of  revivor  the  defendants  must  answer 
in  eight  days  after  appearance,  and  submit  that  the 
suit  shall  be  revived,  or  show  cause  to  the  contrary  ; 
and  in  default,  unless  the  defendant  has  obtained  an 
order  for  further  time  to  answer,  the  suit  may  be  re- 
vived without  answer,  by  an  order  made  upon  motion 
as  a  matter  of  course  (^)(1).     The  ground  for  this 

(I)  See  Harris  v.  Pollard,  3  P.  Wms.  348» 

(l)  By  the  61st  order  of  May,  1845,  "the  plaintiff  in  a  bill  of  re- 
vivor,  or  of  revivor  and  supplement,  is  entitled  as  of  course,  upon 
motion  or  petition,  to  the  common  order  to  revive,  if  a  defendant,  hav- 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  94 

is  an  allegation  that  the  time  allowed  the  defendant 
to  answer  by  the  course  of  the  court  is  expired,  and 
that  no  answer  is  put  in  ;  it  is  therefore  presumed 
that  the  defendant  can  show  no  cause  against  revi- 
ing  the  suit  in  the  manner  prayed  by  the  bill  (in). 
An  order  to  revive  may  also  be  obtained  in  like 
manner  if  the  defendant  puts  in  an  answer  submitting 
to  the  revivor,  or  even  without  that  submission,  if 
he  shows  no  cause  against  the  revivor.  Though  the 
suit  is  revived  of  course  in  default  of  the  defend-  [78] 
ant's  answer  within  eight  days,  he  must  yet  put  in 
an  answer  if  the  bill  requires  it :  as,  if  the  bill  seeks 
an  admission  of  assets,  or  calls  for  an  answer  to  the 
original  bill,  the  end  of  the  order  of  revivor  being 
only  to  put  the  suit  and  proceedings  in  the  situation 
in  which  they  stood  at  the  time  of  the  abatement, 
and  to  enable  the  plaintiff  to  proceed  accordingly. 
And  notwithstanding  an  order  for  revivor  has  been 
thus  obtained,  yet  if  the  defendant  conceives  that 
the  plaintiti'  is  not  entitled  to  revive  the  suit  against 
him,  he  may  take  those  steps  which  are  necessary 
to  prevent  the  further  proceeding  on  the  bill,  and 


(m)  The  court,  after  abatement  of  Roundell  v.  Currer,  6  Ves.  250,  ex- 
a  suit,  has  acted  witliout  revivor  in  cept  proceedings  to  compel  reviver, 
some  instances,  where  the  rights  of  or  to  prevent  injury  to  the  surviving 
the  parties  have  been  fully  ascer-  parties,  if  the  persons  entitled  to  re- 
tained by  decree,  or  by  subsequent  vive  neglect  to  do  so.  [See  Leggett 
proceedings;  but  iu  general  revivor  -v.  Dubois,  2  Paige  C.  R.  213;  and 
is  necessary  to  warrant  any  proceed-  ante  p.  69,  note.] 
ing  after   abatement,   1    Ves.    186; 

ing  appeared  in  person  or  by  his  own  solicitor,  does  not  within  eipht 
days  after  such  appearance  plead  or  demur  to  the  whole  bill,  or  to  so 
much  thereof  as  prays  the  revivor."  And  by  the  G2d  order,  where 
an  appearance  has  been  entered  for  the  defendant  by  the  plaintiff,  and 
the  defendant  does  not  plead  or  demur  within  eight  days  afterwards, 
the  court  may  make  an  order  to  revive,  on  motion  upon  notice. 


95 


94  V        FRAME  AND  END  OF  THE    [ChAP.  I. 

which  will  be  noticed  in  treatinor  of  the  different 
modes  of  defence  to  bills  of  revivor ;  and  though 
^*^  these  steps  should  not  be  taken,  yet  if  the  plaintiff 

does  not  show  a  title  to  revive  he  cannot  finally  have 
the  benefit  of  the  suit  when  the  determination  of  the 
court  is  called  for  on  the  subject  {n), 

If  a  decree  be  obtained  against  an  executor  for 
payment  of  a  debt  of  his  testator,  and  costs,  out  of 
the  assets,  and  the  executor  dies,  and  his  represen- 
tative does  not  become  the  representative  of  the 
testator,  the  suit  may  be  revived  against  the  repre- 
sentative of  the  testator,  and  the  assets  of  the  tes- 
tator may  be  pursued  in  his  hands,  without  reviving 
against  the  representative  of  the  original  defend- 
ant (^). 

After  a  cause  is  revived,  if  the  person  reviving 
finds  the  original  bill  to  require  amendment,  and 
the  pleadings  are  in  such  a  state  that  amendment 
[79]  of  the  bill  would  be  permitted  if  the  deceased  party 
were  living,  the  bill  may  be  amended  notwithstand- 
ing the  death  of  that  party,  and  matters  may  be 
inserted  which  existed  before  the  original  bill  was 
filed,  and  stated  as  if  the  deceased  party  had  been 
living  {p). 

After  a  decree  a  defendant  may  file  a  bill  of  re- 
vivor, if  the  plaintiffs,  or  those  standing  in  their 
right,  neglect  to  do  it  {q)  (1).     For  then  the  rights 

(n)  3  P.  Wms.  348.  defendant  or  his   representative,  if 

(0)  3  Atk.  773 ;  and  see  Johnson    he  or  they  have   an  interest  in   the 
V.  Peck,  2  Ves.  465.  further  prosecution  of  the  suit,  may 

(p)  Kelips  v.    Paine,  15  March,     revive,  if  the  plaintiffs,  or  those  stand- 

1745 ;  Philips  v.  Derhie,  Dick.  98.       ing  in  their  right,  neglect  so  to  do, 

(g)  The  general  proposition,  that  a     seems  to  be  now  fully   established. 

(1)  Where  a  suit  has  become  abated  after  a  decree  for  an  account, 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  95 

of  the  parties  are  ascertained,  and  plaintiffs  and  de- 
fendants are  equally  entitled  to  the  benefit  of  the  ^^ 
decree,  and  equally  have  a  right  to  prosecute  it  (r). 
The  bill  of  revivor  in  this  case,  therefore,  merely 
substantiates  the  suit,  and  brings  before  the  court 
the  parties  necessary  to  see  to  the  execution  of  the 
decree,  and  to  be  the  object  of  its  operations,  rather 
than  to  litigate  the  claims  made  by  the  several  par- 
tics  in  the  original  pleadings  (s),  except  so  far  as 
they  remain  undecided.  In  the  case  of  a  bill  by 
creditors  on  behalf  of  themselves  and  other  cre- 
ditors, any  creditor  is  entitled  to  revive  (t).  A  suit 
become  entirely  abated  may  be  revived  as  to  part  [80] 
only  of  the  matter  in  litigation,  or  as  to  part  by  one 
bill,  and  as  to  the  other  part  by  another.  Thus,  if 
the  rights  of  a  plaintiff  in  a  suit  upon  his  death 
become  vested,  part  in  his  real,  and  part  in  his  per- 
sonal representatives,  the  real  representative  may 
revive  the  suit  so  far  as  concerns  his  tide,  and  the 
personal  so  far  as  his  demand  extends  (u). 

See  Kent  v.  Kent,  Prec.  in  Chan.  1  Eq.  Ca.  Ab.  2. 

197;  1  Eq.  Ca.  Ab.  2  ;  2  Vern.  219,  (<)  That  is,  of  course,  after  he  hath 

297  ;     Williamii  v.    Cooke,    10   Ves.  proved  his  debt.     See  Pitt  and  the 

406  ;  Horwood  v.  Schmedes,  12  Ves.  creditors  of  the  Duke  of  Richmond, 

311.     And   see   Gordon  v.  Bertram,  1  Eq.  Ca.  Ab.  3  ;  and  see  Dixon  v. 

1  Meriv.   154;  Adamson  v.  Hall,  1  Wyatt,  4  Madd.  392  ;  1  Sim.  &.  Stu. 

Turn.   R.  258;  Bolton  v.  Bolton,  2  494.     And,  in  such  a  suit,  the  per- 

Sim.  &.  Stu.  371.  sonal    representative   of   one  of  the 

(»■)  See,    however,   Anon.  3    Atk.  plaintiffs  deceased  may  revive.     Bur- 

691,   and    Lord   Stowell  v.  Cole,  2  ney  v.  Morgan,  1  Sim.  &  Stu.  358. 

Vern.  296.  (u)  Ferrers  v.  Cherry,  1   Eq.  Ca. 

(«)  See  Finch  v.  Lord  Winchelse  ',  Ab.  3,  4. 

and  the  plaintiff  neglects  to  revive  the  suit,  a  defendant  who  is  in-  Bill  of  revivor 
terestpd   in  the  account   may  file  a  bill  to  revive  it  an  I   prosecute  the  ^'jift*'^  *  ^''^^'^' 
decree,  aUliough  he  culd  not  have  filed  tho  original  bill.     Demynes  v. 
Morris,  1  M.  &  C.  213. 

10 


97  FRAME  AND  END  OF  THE  [ChAP.  L 

o/re^ivof ''and      3.  A  bill  of  revivof  and  supplement  is  merely  a 
supplement.      compound  of  those  two  species  of  bills,  and.  in  its 

separate  parts  must  be  framed  and  proceeded  upon 

in  the  same  manner  (1). 
III.  Bills  in  the      III.  Bills  in  the  nature  of  original  bills,  though 

nature   of  ongi-  ^  '      -  o 

Tho'ir'diflerent   occasiouod  by  former  bills,  are  of   eight  kinds : 
"*  ^"  1.  Cross-bills.     2.  Bills  of  review,  to  examine  and 

reverse  decrees  signed  and  enrolled.  3.  Bills  in  the 
nature  of  bills  of  review,  to  examine  and  reverse 
decrees  either  signed  and  enrolled,  or  not,  brought 
by  persons  not  bound  by  the  decrees.  4.  Bills 
impeaching  decrees  upon  the  ground  of  fraud.  5. 
Bills  to  suspend  the  operation  of  decrees  on  special 
circumstances,  or  to  avoid  them  on  the  ground  of 
matter  subsequent.  6.  Bills  to  carry  decrees  into 
execution.  7.  Bills  in  the  nature  of  bills  of  revivor, 
And  8.  Bills  in  the  nature  of  supplemental  bills. 

1.  Cross-bills,         1.  A  cross-bill  is  a  bill  brought  by  a  defendant 

■when  proper,  .  i     •       •  rr^  /     \  i  •  •  n 

andhowtramed.  agamst  a  plamtiii  (x),  or  other  parties  m  a  lormer 
L     J       bill  depending,  touching  the  matter  in  question  in 

(x)  It  has   been    decided,  that  a     Glegg  v.  Legh,  4  MAdd.  193;  Parker 
cross-bill  may  be  filed  in  Chancery  to     v.  Leigh,  6  Madd.  115. 
an  original  bill  in  the  Exchequer  (2). 


Revivor  and  sup-       0)  Where  a  suit  abates  after  a  general  demurrer  for  want  of,  equity 
plement.  has  been  filed,  but  before  it  has  been  heard,  the  plaintiff,  or  a  person 

claiming  in  the  same  right,  is  at  liberty  to  file  a  bill  of  revivor  and 
supplement,  alleging  such  supplemental  matter  as  may  be  necessary 
to  show  by  and  against  whom  an  ord  t  to  revive  may  properly  be  ob- 
tained ;  but  he  is  not  at  liberty  to  claim  the  same  or  additional  relief 
by  adding  supplemental  matter  in  corroboration  of  the  original  claim, 
and  not  required  for  the  purpose  of  showing  by  and  against  whom  an 
order  to  revive  may  pn  perly  be  obtained.  Bampion  v.  Birchall,  5 
Beav.  330.  See  as  to  original  bill  in  nature  of  revivor  and  supple- 
ment, p.  86,  note. 

(2)  See  note  to  p.  6,  supra. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  98 

that  bill  («/)  (1).     A  bill  of   this  kind    is  usually- 

(y)  For  an  example  of  the  sense  Ves.  J.  284,  and  see  Piggott  v.  Wil- 
in  which  this  proposition  is  to  be  un-  Hams,  6  Madd.  95.  [Galatian  v. 
derslood,  see    Hillon   v.  Barrow,   1     Erwin,  1  Hopk.  R.  58.] 

(1)  Cross-bills,  as  well  as  many  other  branches  of  modern  pleading  origin  and  use* 
and  procedure,  have  been  traced  by  analogy  to  the  Roman  civil  law.  ®  cross-bin 
(See  2  Bro.  Civ.  &.  Ad  n.  Law,  c.  8;  Gilbert's  Forum  Romanum,  c. 
2-4 :  quoted  by  Story,  Eq.  PI.  c.  2, }  14,  note  3,  J  402.)  "  The  practice," 
(the  late  chancellor  of  New-York  observed,  in  White  v.  Buloiil,  2 
Paige's  R.  164,)  "  in  relation  to  cross-bills,  does  not  appear  to  be  well 
"settled  either  in  this  state  or  in  the  English  Court  of  Chancery.  It 
"  may,  therefore,  be  necessary  to  look  into  the  origin  of  the  practice 
"  and  notice  the  changes  it  has  undergone,  for  the  purpose  of  apply- 
"ing  its  principles  to  the  present  practice  of  this  court  under  the  new 
"mode  of  taking  proofs  openly,  or  in  open  court  before  the  circuit 
"judges,  as  was  done  in  the  late  equity  courts.  The  bill  and  cross- 
"  bill  were  derived  from  the  civil  law;  and  they  answer  to  the  conien' 
" /to  and  rec'.nveniio  in  ihe  Roman  tribunal,  li  t\ie  reconi entio  came 
"  in  before  the  litis  contesla  io  or  joining  of  the  issue  in  the  suit,  it  was 
"  in  time,  and  bo'h  causes  went  on  pari  passu.  The  same  probatory 
"  term  was  a.ssigned  to  both  ;  and  the  same  time  was  given  for  publi- 
"  cation.  It  is  from  this  we  find  in  the  old  books  of  practice,  that  the 
"  cross-bill  should  be  filed  before  or  at  the  time  of  answering  the 
"  original  bill,  which  generally  answered  to  the  litis  conteslatio .oi  the 
"  Roman  law.  If  it  did  not  come  in  before  that  time,  the  causes  could 
"not  proceed  together,  as  the  original  cause  was  then  gone  from  the 
*^ prcctoriam  forum  to  the  Judices.  (2  Bro.  C.  &  A.L.  348.  How.  Eq. 
"  side,  287.)     Where   the  reconvenlio  or  cross-bill  came  in  after  the  « 

"  lilis  contestatio  or  joining  of  issue,  it  did  not  stop  the  complainant  in 
"  the  examination  of  his  witnesses,  unless  the  defendant  in  the  recon- 
"  ventio  was  in  contempt  for  not  answering.  If  it  came  in  even  after 
"publication,  it  was  not  too  late,  but  the  party  must  go  to  a  hearing 
"on  the  testimony  taken  in  the  original  suit,  and  on  the  answer  of  the 
"defendant  in  the  cross-suit;  because,  after  publication  passed,  no 
"witnesses  could  be  examined  to  the  same  matter  as  to  which  proofs 
•*  had  already  been  taken  and  published.  (Cur.  Cane.  337.  Gilb.  For. 
"Rom.  47.  Ward  v.  Eyles,  Mosel,  382.)  The  English  practice  at 
"  the  present  day  appears  to  be,  to  grant  an  order  of  course  to  stay 
"  puljlication  until  a  fortnight  after  the  answer  to  the  cross-bill  has 
"conie  in,  where  the  cross-bill  has  been  filed  in  time,  that  is,  before 
"the  issue  has  been  joined  in  the  original  cause.  (Hinde,  54.  1  Atk. 
"Rep.  21)  But,  wher."  the  cross-bill  is  not  filed  until  the  original 
"  cause  has  been  proceeded  in,,  the  motion  to  enlarge  publication  must 


98  FRAME  AND  END  OF  THE    [CuAP.  I. 

brought  to  obtain  either  a  necessary  discovery,  or 

"be  special,  and  upon  notice  to  the  adverse  party,  that  the  court  may 
"judge  of  it  on  the  circumstances.  (Ayleil  v.  Easy,  2  Ves.  sen.  336.) 
"In  no  case  is  the  complainant  in  the  original  suit  compelled  to  stay 
"  proceedings  therein  without  a  special  order  for  that  purpose.  Noel 
"  V.  King,  2  Mad.  Rep.  392.)  After  both  causes  are  at  issue,  or  in  a 
«'  situation  to  be  heard,  the  complainant  in  the  cross-suit  may,  on  mo- 
"  tion,  have  an  order  that  both  causes  be  heard  together ;  a  copy  of 
"  which  is  to  be  served  on  the  solicitor  for  the  complainant  in  the 
"original  cause.  But,  notwithstanding  this  order,  the  delay  of  the 
*'  complainant  in  the  cross-suit  will  not  be  perinitted  to  delay  the  hear- 
"ingof  the  original  cause.  (How.  Eq.  side  289.)  The  practice  on 
"this  subject  in  the  Irish  court  of  chancery  is  undoubtedly  more  con- 
"ducive  to  the  ends  of  justice,  and  is  best  adapted  to  our  system  of 
"taking  testimony  orally.  There,  the  crosi=!-biil  must  be  filed  on  oath, 
"  and  the  certificate  of  counsel  that  it  is  not  intended  for  delay  and 
"that  it  is  necessary  for  the  attainment  of  justice  in  the  cause;  and 
"the  proceedings  in  the  original  cause  are  not  to  be  delayed  in  any 
"case,  unless  upon  the  special  order  of  the  court,  founded  upon  notice 
"of  the  application  to  the  complainant  therein."  [And  see  Rule  42  of 
(late)  N.  Y.  Chancery;  and  the  Irish  practice,  above  alluded  to  in 
Ellioft  V.  Milieu,  and  Millett  v.  EllioU,  1  Hogan's  C.  R.  125;  and  the 
order  from  O'Keefe's  Rules  there  given.  By  rule  of  the  Irish  court 
of  chancery,  cross-bill  will  be  taken  off  the  file,  if  put  on  without  a 
certificate  of  counsel.  If  the  certificate  of  counsel  has  been  subjoined, 
but  the  complainant  has  not  filed  the  necessary  affidavit,  no  subpoena 
to  answer  can  issue.     Elliot  v.  Millet,  1  Hogan's  R.  125.] 

Persons  not  party  defendant  to  the  original  cannot  file  a  cross-bill, 
but  if  so,  and  it  is  answered,  it  will  not  be  dismissed  on  motion  before 
final  hearing.  It  might  have  been  demurred  to.  Whether  a  decree 
can  be  made  thereon,  was  a  question  reserved  for  the  hearing,  m  Payne 
V.  Cowan,  and  Naylor  v.  Payne  et  al.  1  Smedes  &  Marshall's  C.  R., 
Mississippi,  85,  26. 

[By  the  English  practice,  if  a  bill  and  cross-bill  are  filed,  the  com- 
plainant in  the  original  bill  has  a  right  to  the  first  answer  and  may  move 
to  stay  proceedings  in  the  cross-cause  till  the  original  bill  is  answered, 
although  the  complainant  in  the  cross-bill  may  be  in  a  situation  to 
enforce  an  answer  first.     Harris  v.  Harris,  1  Turn.  &.  R.  165.] 

So  in  Massachusetts  by  rule  of  chancery  or  equity  side  of  Supreme 
Judicial  Court,  defendant  in  the  cross-bill  cannot  be  compelled  to 
answer  it  until  complainant  therein  has  answered  the  original.  (24 
Pick.  R.  413,  R.  13.) 

In  New-York  it  is  held  that  the  proper  time  of  filing  cross-bill  where 


S.  HI.]  SEVERAL  KINDS    OF  BILLS.  98 

fall  relief  to  all  parties.     It  frequently  happens,  and 

such  bill  is  necessary,  is  at  the  time  of  putting  in  the  answer  and 
before  issue  by  replication  thereto,  and  as  the  matters  of  defence  upon 
which  a  cross-bill  is  founded  must  be  stated  in  the  answer  to  the  origi- 
nal suit  as  well  as  in  the  cross-bill,  it  can  be  seldom  necessary  to  delay 
the  latter  until  after  the  cause  is  at  issue.  And  if  not  filed  until  after 
issue,  defendant  is  not  entitled  to  order  to  slay  proceedings  until  an- 
swer is  made  to  his  cross-bill,  without  showing  some  excuse  for  his 
neglect.     {Ining  v.  De  Kay,  10  Paige's  R.  322  et  seq.  319.) 

And  to  entitle  to  stay  proceedings  in  the  original  until  answer  to 
cross-bill,  all  the  complainanrs  in  the  cross-bill  must  join  in  the  appli- 
cation ;  and  the  matters  in  the  cross-bill  must  not  be  stated  on  infor- 
mation and  belief,  but  must  be  sworn  to  by  some  one  knowing  the  facts. 
The  affidavit  of  such  person  should  be  obtained  by  complainant  to 
corroborate  their  statement  of  information  and  belief.  (Talmage  v. 
Pell  et  al.  9  Paige's  R.  412,  413,  410.) 

In  Massachusetts  it  is  held,  that  as  a  general  rule,  it  should  be  filed 
before  publication  of  the  evidence  in  the  original  suit,  unless  plaintiff 
in  the  cross-bill  will  go  to  a  hearing  on  the  proofs  already  published. 
But  the  court,  if  justice  and  equity  of  the  case  require,  will,  on  motion, 
allow  a  cross-bill  to  be  filed  after  the  publication,  and  even  after  hear- 
ing of  the  cause,  if  it  should  thereupon  appear  that  a  cross-bill  is 
necessary  to  a  complete  and  equitable  decree  in  the  original  suit: 
But  otherwise  a  cross-bill  filed  after  hearing  and  without  leave  of 
court  cannot  be  sustained.  A  cross-bill,  if  filed  in  season,  may,  in 
Massachusetts,  be  sustained  to  obtain  an  equitable  set-off,  and  gene- 
rally, it  should  be  filed  before  issue  joined,  (see  p.  99,  note,  infra.) 
But  the  court  say  that  though  a  cross-bill  may,  if  justice  require,  be 
filed  after  issue,  and  even  hearing,  the  proceeding  in  the  original]  cause 
will  not  be  delayed  in  any  case  without  special  order  on  notice  of 
application  to  the  adverse  party ;  and  in  the  above  case  where  great 
latches  were  imputable  to  defendants  if  they  intended  to  avail  of  a 
set-off,  the  original  cause  having  been  pending  five  or  six  years,  before 
cross-bill  filed,  and  that  bill  also  pending  for  a  year  since,  the  court 
refused  to  subjet^the  plaintiff  in  the  original  to  further  delay  and  dis- 
missed the  cross-bill.  (Cartwright  and  another  v.  Clark,  4  Metcalf 
R.  109,  104.) 

[In  Field  v.  Schieffelin,  7  J.  C.  R.  260,  it  is  said,  that  the  court  may, 
at  a  hearing,  direct  a  cross-bill  to  be  filed,  when  it  appears  that  the 
first  suit  is  insufficieiit  to  bring  before  the  court  the  rights  of  the 
parties,  and  the  matters  necessary  to  a  full  and  just  determination  of 
the  cause.  But  see  Sterry  v.  Servant,  1  lb.  62,  and  \\ hiie  v.  Buloid, 
2  Paige's  C.R.  164.] 


98  FRAME  AND  END  OF  THE     [ChAP.  I. 

particularly  if  any  question  arises  between  two  de- 

[By  the  English  practice,  substituted  service  of  a  subpoena  in  a 
cross-cause  is  enough.  Gardiner  v.  Mason,  4  B.  C.  C.  478.  Query — 
Whether  it  would  be  allowed  by  the  practice  of  the  State  of  New- 
York?     See  Sawyer  v.  Saicyer,  3  Paige's  C.  R.  263. 

Service  of  process  is  made,  upon  the  filing  of  a  cross-bill.  Ander' 
son  V.  Ward,  5  Monroe's  R.  420.] 

See  further  pp.  99,  100  and  notes, 
n.  In  vrhat  cases  A  cross-bill  is  filed  to  bring  more  fully  before  the  court  a  subject 
*'^tb''^5dbit'(i  '^^t^^'"  connected  with  the  case  made  in  the  bill  and  which  is  necessary  . 
to  a  determination  of  the  controversy.  The  necessity  of  a  cross-bill 
may  arise  as  well  between  two  defendants  as  between  one  or  more 
defendants  and  the  complainant  {Hubbard  v.  Turner  and  others,  2 
Mc  Lean's  R.  539,  640,  519.) 

[A  defendant  cannot  move  for  or  obtain  cross  relief  against  the  com- 
plainant, unless  he  files  a  cross-bill.  Hore  v.  Collins,  1  Hogan,  193. 
And  one  defendant,  it  has  been  said,  in  Kentucky,  cannot  have  a  decree 
against  another  without  a  cross-bill.  Talbot  v.  M^Gee,  4  Monroe's 
R.  378.  But  this  may  be  questioned.  Elliot  v.  Pell,  1  Paige's  C.  R. 
263.  Such  a  bill  cannot  contradict  the  assertions  contained  in  the 
original  answer.  Hudson  v.  Hudson's  executors,  I  Randolph's  R.  117. 
A  bill  which  does  not  pray  that  the  cause  may  be  heard  at  the  same 
time  with  another  cause,  and  one  decree  be  had  in  both,  is  not,  in  form, 
a  cross-bill.      Wright  v.  Taylor,  1  Edwards'  V.  C.  226.] 

[ft  seems,  that  a  cross-bill  may  set  up  additional  facts  not  alleged  in 
the  original  bill  where  they  constitute  part  of  the  same  defence,  rela- 
tive to  the  same  subject  matter.  Underhill  v.  Van  Cortland/,  2  J.  C.  R. 
339,  355.  But  it  must  be  confined  to  the  subject  matter  of  the  bill. 
May  V.  Armstrong,  3  J.  J.  Marshall's  R.  262.] 

So,  in  Fletcher  v.  Wilson  et  al.  1  Smedes  &.  Marshall,  C.  R.,  Missis- 
sippi, 391,  376,  it  was  held  that  defendant  cannot  introduce  new  and 
distinct  subjects  of  litigation  from  those  in  original  suit.  But  if  he 
have  any  claim  upon  the  property  he  may  assert  it  affirmatively  in 
cross-bill. 

In  Talmage  v.  Pell  et  al  9  Paige's  R.  412,  413,  410,  (on  application 
to  stay  proceedings  of  original  bill  until  answer  be  made  to  a  cross- 
bill,) it  was  held,  that  where  new  matters  of  defence  are  discovered 
after  answer,  but  existed  before,  defendant  should  apply  for  leave  to 
file  a  supplemental  answer  instead  of  resorting  to  a  cross-bill  only. 

In  Kentucky  and  some  other  states,  answers  in  nature  of  cross-bills, 
are  allowed.  But  it  is  not  the  estab  ished  English  practice.  The 
benefit  of  a  cross-bill  has  been  given  in  England  to  an  answer ;  but  it 
is  regarded  as  a  departure  from  the  general  rule.     And  the  Supreme 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  98 

fendants  to  a  bill,  that  the  court  cannot  make  a 
complete  decree  without  a  cross-bill  or  cross-bills  to 

and  Circuit  Courts  of  the  United  States  are  governed  in  chancery 
(not  by  the  local  state  practice,  see  ante  p.  1,  note,  but)  by  the  English 
practice.      (Hubbard  v.  Turner  et  al  2  Mc  Lean's  R.  639,  540,  519.) 

But  a  cross-bill  is  now  unnecessary  in  some  cases  where  it  was  for- 
merly required ;  as  in  bill  for  specific  performance  defendant  sets  up  a 
different  agreement  and  offers  to  perform  it;  the  old  course  would  have 
required  a  cross-bill,  but  now  the  court  will  decree  specific  perform- 
ance of  agreement  actually  set  up  and  established  by  the  defence. 

But  where  no  off  r  is  thus  made,  it  seems  tlie  plaintiff  cannot  have 
a  specific  performance,  as  it  is  not  the  case  stated  in  his  bill ;  but 
should  on  coming  in  of  defendant's  answer  amend  or  move  to  dismiss 
without  prejudice.  (Story  Eq.  PI.  J  394,  note,  and  authorities  there 
cited.) 

The  cross-bill  is  derived  from  the  Common  Law — see  Story  Eq.  PI. 
{ 402. 

If  the  original  bill  be  to  set  aside  agreement  or  conveyance,  or  an 
award  based  thereon,  defendant  should  file  a  cross-bill  in  order  to 
establish  the  conveyance,  in  the  event  of  a  refusal  to  sot  it  aside. 
(Carnochan  v.  Christie,  11  Wheaton  R.  446;  6  Cond.  R.  382,  394.) 

To  a  suit  institutf'd  to  obtain  the  benefit  of  an  executed  contract,  Crossbill  as  a 

J-  /-ii  -.1  1  <-!•  .        deifnce  to  a  suit 

a  defence  tounded  on  a  mistake  as  to  the  quantity  of  tlie   interest  in-  for  the  benefit  of 
tended  to  pass,  or  on  inadequacy  of  consideration,  or  on  the  substitu-  contract'^''^'^ 
tion  of  another  contract,  cannot  be  made  by  answer,  but  must  be  made 
by  a  cross-bill.     Richards  v.  Bayley,  1  Jones  &  Latouche,  120;  Nash 
V.  Flyn,  id.  162. 

To  a  bill  for  a  specific  performance  of  a  partnersliip,  a  defendant  cross-biii  as  a 
cannot  make  the  misconduct  of  another  partner  available  as  a  defence  defence  to  a  bill 

^,.  T.  ^°'"  "  specific 

except  by  means  of  a  cross-bill.      Lnglind  v.  Curling,  8  Beav.  129.       performance  of 

Where  a  suit  is  instituted  by  the  lessees  of  an  ecclesiastical  corpo-  cross-'bilf ofdis- 
ration  for  an  account  and  payment  of  the  value  of  tithes,  to  which  '•o^'cry  against  a 

'^   ■'  '  lessor  of  tithes. 

fiuit  the  corporation  are  not  parties,  the  occupiers,  who  are  the  defen- 
dants thereto,  cannot  file  a  cross-bill  against  the  corporation,  as  well 
as  aj^ainst  the  lessees,  for  a  discovery  and  production  of  documents. 
For  such  a  suit  is  regarded  as  a  mere  possessory  suit,  and  not  as 
establishing  the  riglit  to  tithe  ;  and  therefore  the  corporation  has  no 
interest  in  the  suit.  And  it  would  be  extremely  mischievous  if  a 
tenant  in  fee,  whenever  a  dispute  arises  between  his  lessee  and  others, 
were  to  be  compelled  to  produce  his  title  deeds  at  the  request  bf  those 
other  persons,  and  for  the  purpose  of  destroying  his  own  title.  Tooth 
V.  Dean  and  Chapter  of  Canterbury,  3  Sim.  49.  See  further  p.  99 
-and  notes. 


98  FRAME  AND  END  OF  THE    [CnAP.  I.. 

bring  every  matter  in  dispute  (y)  completely  before 
the  court,  litigated  by  the  proper  parties,  and  upon 
proper  proofs.  In  this  case  it  becomes  necessary 
for  some  or  one  of  the  defendants  to  the  original 
bill  to  file  a  bill  against  the  plaintitf  and  other  de- 

99  fendants  in  that  bill,  or  some  of  them,  and  bring  the 
litigated  point  properly  before  the  court  (z).  A 
cross-bill  should  state  the  original  bill,  and  proceed- 
ings thereon,  and  the  rights  of  the  party  exhibiting 
the  bill  which  are  necessary  to  be  made  the  subject 
of  cross  litigation,  or  the  ground  on  which  he  resists 
the  claims  of  the  plaintiff  in  the  original  bill,  if  that 
is  the  object  of  the  new  bill.  But  a  cross-bill  being 
generally  considered  as  a  defence  (a)  (1),  orasapro- 

(y)  [Rogers  v.  M'Machan,  J.  J.  ance,  and  he  proves  an   agreement 

Marshall's  R.  37,  Troop  v.  Height,  1  different  from  that  insisted  on  by  the 

Hopk.  C.  R.  239.]  plaintiff,  and  submits  to  perform  the 

(z)  There  is  an  instance,  however,  same,  for,  in  such  a  case,  if  the  court 

in  which  this  court   will,  it  seems,  decide  in  favor  of  that  stated  by  the 

contrary  to  the  old  practice,  give  the  defendant,  it  will  decree  the  same  to 

benefit  of  a  cross-bill  to  a  defendant  be   executed.      Fife  v.   Clayton,   13 

Bpon  his  answer,  namely,  where  the  Ves.  546  ;  15  Ves.  525. 

original  bill  is  for  specific  perform-  (a)  3  Atk.  812. 

(1)  [Galatian  v.  Erwin,  1  Hopk.  58.] 

Defendant  in  partition  suit  in  chancery,  in  New- York,  may  set  up 
in  answer  as  a  defence  to  the  suit,  the  fact  that  he  is  in  equity  entitled 
to  the  whole  premises  of  which  partition  is  sought  by  the  bill.  Defen- 
dant must  proceed  by  cross-bill,  if,  in  addition  to  the  denial  of  a  decree 
for  partition  and  a  dismissal  of  the  bill,  he  seeks  full  and  affirmative 
relief  on  his  part  by  a  decree  for  a  transfer  to  himself  of  the  legal  title  ■ 
to  the  whole  premises,  or  if  a  discovery  is  necessary  to  establish  his 
equitable  defence.  And  where  the  new  facts  stated  in  the  cross-bill - 
constitute  tlie  grounds  for  an  equitable  defence  to  the  original  suit,  as 
well  as  for  further  affirmative  relief  against  the  defendants  in  the  cross- 
bill, it  is  proper  to  state  such  facts  in  the  answer  to  the  original  bill, 
if  the  same  are  known  to  the  defendant  at  the  time  of  putting  in  such 
answer.     {German  v.  Machin,  6  Paige's  R.  290-1,  288.) 

In  Massachusetts,  a  cross-bill,  if  filed  in  season,  (of  which  see  note- 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  99 

ceeding  to  procure  a  complete  determination  of  a       [82] 
matter  already  in  litigation  in  the  court,  the  plaintiff 
is  not,  at  least  as  against  the  plaintiff  in  the  original 
bill,  obliged  to  show  any  ground  of  equity  to  support 
the  jurisdiction  of  the  court  (/>). 

A  cross-bill  may  be  filed  to  answer  the  purpose  of  a 
plea^wis  darrein  continuance QX\hQCO\w\x\on\Q.\y(V). 

{Ii)  Dohle  V.  Potman,  Hardr.  160.  mentioned  by  Blackstone,  in  I  Bl. 
And  see  Sir  John    Warden's  case,     Rep.  132. 

p.  98,)  may  be  sustained  to  obtain  an  equitable  set-off;  and  in  such 
ca.se,  it  is  not  necessary  rhat  plaintiff  show  any  ground  of  equity  as 
against  the  plaintiff  in  the  ori^'inaj  bill  to  support  tlie  jurisdiction  ;  a 
cross-bill  being  considered  as  a  defence  in  the  original  su:t.  To  obtain 
the  benefit  of  such  a  defence  the  cross-bill  must  generally  be  filed 
before  the  publication  of  the  evidence  and  before  issue  joined  ;  and  if 
defendant  has  a  counter  demand  against  the  [laintiff,  he  should  regu- 
larly insist  on  it  in  his  answer.  But  a  cross-bill  may,  if  j;istice  require, 
be  tiled  a'ter  issue  and  e^en  hearing.  {^Carlwright  v.  Clark,  4  Met- 
calf'.s  R.  109,  104.) 

In  Nevv-York,  a  cross-bill  to  let  in  a  set-off  which  by  the  2  Revised 
Statutes  174,  }40,  may  now  be  made  in  chancery  as  at  law,  is  not  ne- 
cessary nor  proper.  It  should  be  set  forth  in  answer,  in  analogy  to  a 
pjea  of  set-off  and  proved  up  m  the  hearing  in  support  of  the  answer. 
And  no  such  set-off  can  be  allowed  in  a  foreclosure  suit  under  the 
Revised  Statutes  which  cou'd  not  be  allowed  as  a  proper  subject  of 
set-off  in  an  analogous  case  at  law  for  recovery  of  the  mortgage  debt. 
Where  defendant  has  not  such  le^al  right  of  set-off,  his  cross-bill  must 
not  only  show  the  existence  of  a  debt  due  from  the  complainants  in 
the  foreclosure  suit,  but  also  that  they  are  insolvent;  so  that  injustice 
would  be  done  if  such  set-off  be  not  allowed  and  defendant  left  to  his 
remedy  against  them  by  an  independent  suit.  Or  defendant  must  state 
some  other  ground  of  equity  in  his  cross-bill  which  would  have  been 
sufRcient  to  sustain  an  original  bill  in  this  court  for  a  set-off.  {Irving 
v.  DeKny,  10  Paige's  C.  R.  322-3,  319.) 

(1 )  It  is  of  course  to  permit  a  defendant,  who  is  discharged  after 
the  bill  is  taken  as  confessed,  or  after  answer,  to  put  in  an  answer  in 
the  nature  of  a  plea  puis  darrein  setting  up  that  defence,  unless  com- 
plainant stipulate  to  take  no  personal  decree  against  the  biinkrupt,  or 
his  subsequently  acquired  property,  or  consent  to  dismiss  his  bill  with- 
out costs;  or  unless  there  was  an  allegation  that  the  discharge  was 
obtained  by  fraud.     But  where  compldinant  as  in  this  case,  in  opposi- 


;99  FRAME  AND  END  OF  THE     [ChAP.  I. 

Thus,  where  pending  a  snit,  and  after  replication 
and  issue  joined,  the  defendant  having  obtained  a 
release,  attempted  to  prove  it  viva  voce  at  the  hear- 
in  f?,  it  was  determined  that  the  release  not  beinfr  in 
issue  in  the  cause,  the  court  could  not  tiy  the  fact, 
or  direct  a  trial  at  law  for  that  purpose,  and  that  a 
new  bill  must  be  filed  to  put  the  release  in  issue. 
100  In  the  case  before  the  court,  indeed,  the  bill  directed 

to  be  filed  seems  to  have  been  intended  to  impeach 
the  release  on  the  ground  of  fraud  or  surprise,  and 
therefore  to  have  been  a  proceeding  on  the  part  of 
the  plaintiff  in  the  original  bill.  But  it  was  clearly 
determined  that  without  being  put  in  issue  in  the 


tion  to  the  motion,  made  affidavit  of  his  belief  that  the  discharge  was 
|_ooJ         fraudulent,  and  that  he  intended  to  contest  its  validity  on  that  ground, 
the   proper  course  is  to  authorize  defendant  to   bring  forward   such 
defence  by  a  cross-bill.     ( Scoll  v.  Grant,  10  Paige,  C.  R.  485.) 

In  Smith  v.  Smith,  4  Paige  432,  what  was  a  bill  for  divorce  a  vinculo, 
cf-c,  the  court  held  that  complaiaaut's  adultery,  though  after  bill  filed, 
is  a  bar  to  his  suit.  If  after  answer,  the  defendant,  through  mistake 
or  inadvertence  had  neglected  to  set  it  up  in  her  answer,  she  will  be 
permitted,  if  she  apply  the  first  opportunity  for  leave,  to  amend  her 
answer ;  (or,  even  after  trial  of  feigned  issue,  it  seems,  it  is  not  too 
late  to  set  up  the  defence,  if  excuse  be  shown;)  or,  to  file  a  supple- 
mental answer  to  put  that  fact  in  issue,  or  a  cross-bill  in  nature  of  a 
pleap/as  darrien  continuance.  The  adultery  of  complainant,  though 
committed  after  suit  brought  and  feigned  issue  awarded,  would  be  as 
effectual  to  bar  the  suit,  if  discovered  in  time,  as  if  it  had  occurred 
previously  to  the  adultery  of  the  wife.  Upon  a  proper  application, 
therefore,  even  after  trial  of  the  feigned  issue,  and  at  any  time  before 
the  final  decree,  if  such  application  be  m  ide  immeliately  after  dis- 
covery of  the  fact,  the  court  will  permit  defendant  to  put  in  su  h  sup- 
plenental  answtT,  or  cross-bill  in  nature  of  plea  fuis,  4'C.,for  the  pur- 
pose of  setting  up  this  new  defence.  Whether  such  defence  may  be 
by  crdss-bill  in  nature  of  a  bill  of  review,  where  the  fact  is  not  discov- 
ered by  defendant  until  after  a  final  decree,  is  a  question  that  seems 
not  decided.     {Idem.  p.  434-5,  438.) 

For  form  of  cross-bill,  see  [Willis,  364.] 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  100 

cause  by  a  new  bill  it  could  not  be  used  in  proof  (c). 

Upon  hearing  a  cause  it  sometimes  appears  that 
the  suit  already  instituted  is  insufficient  to  bring 
before  the  court  all  matters  necessary  to  enable  it 
fully  to  decide  upon  the  rights  of  all  the  parties. 
This  most  commonly  happens  where  persons  in 
opposite  interests  are  co-defendants,  so  that  the 
court  cannot  determine  their  opposite  interests  upon  [83] 
the  bill  already  filed,  and  the  determination  of  their 
interests  is  yet  necessary  to  a  complete  decree  upon 
the  subject-matter  of  the  suit.  In  such  a  case,  if 
upon  hearing  the  cause  the  difficulty  appears,  and  a 
cross-bill  has  not  been  exhibited  to  remove  the 
difficulty,  the  court  will  direct  a  bill  to  be  filed,  in 
order  to  bring  all  the  rights  of  all  the  parties  fully 
and  properly  for  its  decision ;  and  will  reserve  the 
directions  or  declarations  which  it  maybe  necessary 
to  give  or  make  touching  the  matter  not  fully  in 
litigation  by  the  former  bill,  until  this  new  bill  is 
brought  to  a  hearing  (d), 

2.  The  obiect  of  a  bill  of  review  is  to  procure  an  101 

examination  and  reversal  of  a  decree  (^)  made  upon  view: 
a  former  bill,  and  signed  by  the  person  holding 

(c)  Hayne  v.  Hayne,  3  Ch.  Rep.  it  by  a  cross-bill.  Litouche  v.  Lord 
19 ;  3  Swanst.  472,  474.  See  as  to  Duasany,  1  Sch.  &l  Lefr.  137. 
filing  a  supplemental  bill  where  a  (e)  There  can  be  no  bill  of  review 
matter  has  not  been  properly  put  in  upon  a  decree  of  the  court  on  e.xcep- 
issue,  Jones  v.  Jones,  3  Atk.  110  ;  1  tions  to  a  decree  of  commissioners  of 
Jac.  &  W.  339.  charitable     uses,    under  the   statute. 

(d)  (See  p.  98,  note,  supra.)  If  a  See  Windsor  v.  InhahUants  of  Farn- 
creditor  who  hath  come  in  under  a  Aam,  Cro.  Car.  40 ;  Saul  v.  Wilson, 
decree  against  his  debtor  require  re-  2  Vern.  118.  Nor,  upon  a  decree  of 
lief  for  the  purpose  of  assisting  the  this  court  confirming  a  judgment  of 
investigations  before  the  master,  the  lord  mayor,  respecting  tithes  ia 
which  cannot  be  obtained  by  a  re-  London,  under  the  statute  37  Hen. 
hearing  of  the  original  cause  he  may,  VIII.  c.  12;  Pridgeon's  Case,  Cro. 
without  direction  of  the   court,  seek  Car.  351. 


2.  Bills  of  re- 


101  FRAME  AND  END  OF  THE    [ChaP.  L 

the  great  seal,  and  enrolled  (/).     It  may  be  brought 

npon  error  of  law  appearing  (g)  in  the  body  of  the 

L""*]       decree  itself  (A),  or  upon  discovery  of  new  matter 

for  error  of  law.  (ij  (±y     In  tho  first  casc  the  decree  can  only  be 

(/)  Tothill,47;  Boh.  Curs.  Cane.  (g)  1  Roll.  Ab.  382.  Venahlesv. 
353;  Taylor  v.  Sharp,  3  P.  Wms.  Foyle,  1  Ca.  in  Cha  4;  Tottiill,  41. 
371.  [Gelstorfv.  Codwise,!  J.  C.  R.  (A)  Grice  v.  Goodwin,  Prec.  m 
195;  Wiser  v.  Blackly,  2  lb.  488;  Chau.  2G0 ;  3  P.  Wms.  371. 
Furman  v.  Coe,  on  appeal,  1  C.  C.  E.  (i)  Le  Neve  v.  Norris,  2  Bro.  P.  C. 
96;  Lansing  v.  Albany  Insurance  73,  Toml.  ed. ;  and  see  17  Ves.  178. 
Company,  1  Hopk.  102;  Elliott  v.  This  term  includes  new  evidence  of 
Pell,  1  Paige's  C.  R.  263  ;  Litt.  Sell,  facts  put  in  issue,  which  would  ma- 
Ca.  125  ;  Garner's  administrator  v.  teriaily  affect  the  judgment  of  the 
Strode,  5  Litt.  315  ;  .M'Cracken's  court,  16  Ves.  350.  See  Or d  v.  Noel, 
heirs,  1  Bibb,  455;  Kenan's  execu-  6  Madd.  127,  which,  although  a  case 
tors  V.  Williamson,  1  Hay  w.  350  ;  relating  to  a  sujjpletnental  bill  iu  the 
Bowyer  V.  Lewis,  1  Hen.  &.  Munf.  nature  of  a  bill  of  review,  seems  to 
558;  Ellsley  v.  Lane's  executors,  2  show  that  the  matter  must  be  mate- 
lb.  589 ;  Anon,  2  Law  Recorder  rial,  and  such  at  the  least  as  will 
(Irish)  462.]  raise  a  fit  subject  for  judgment  in  the 

cause. 


Bill  of  review  0)  "The  mere  propriety  of  a  former  decree  cannot  be  questioned 

qneetioniiig  the  by  bill  of  review  :  it  is  only  where  there  is  error  on  the  face  of  it  that 

of  a  former  de-  such  a  bill  can  be  sustained."     Haig  v.  Homnn,  8  CI.  &-  F.  321. 

"*^  [A  bill  of  revievw  for  error  apparent  must  be  for  an  error  in  law, 

arising  out  of  the  facts  admitted  by  the  pleadings,  or  recited  in  the 

decree  itself  as  settled,  declared  or  allowed  by  the  court.     It  cannot 

be  sustained  upon  the  ground  that  ths  court  has  decided  wrong  upon 

a  question  of  fact.       Webb  v.  Pell,  3  Paige's  C.   R.  368 ;    and  see 

Dougherty  v.  Morgan'' s  executors,  6  Monroe's  R.  505.] 

So  in  WMling  el  al.  v.  the  Bank  of  the  United  Stales,  13  Peters,  14, 
6 ;  it  being  objected  that  no  bill  of  review  lies  for  errors  of  law,  except- 
ing where  they  appear  on  the  face  of  the  decree,  the  court  by  Justice 
Story,  said  :  That  is  true  in  the  sense  in  wiiich  the  language  is  used 
in  the  English  practice.  In  England,  the  decree  recite.s  the  substance 
of  the  bill,  pleadings  and  fatts  on  which  the  court  founds  its  decree. 
This  is  not  ordinarily  done  in  America.  But  the  bill,  answer  and 
other  pleadings,  with  the  decree,  are  properly  considered  the  record. 
Therefore  the  rule  is  the  same  in  legal  effect,  although  expressed  in 
different  languaire,  viz.:  that  the  bill  of  review  must  be  founded  on 
8ome  error  apparent  upon  the  bill,  answer,  and  other  pleadings,  and 
decree;  and  that  evidence  at  large  cannot  be  gone  into  to  establish 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  101 

reversed  upon  the  ground  of  the  apparent  error  (k) ; 

'(k)  Lady   Cramhorne  v.    Dalma-     Prac.  Reg.  94,  Wy.  Ed.;  4  Vin.  Ab. 
hoy,  1  CI).  Rep.  231  ;  Nela.  Rep.  86;     414. 


an  objection  to  the  decree,  founded  on  the  supposed  mistake  of  the 
court  in  its  own  d  ductions  from  the  evidence. 

In  Ohio,  in  Steien^i  v.  Hay  el  al.,  15  Ohio  R.  317-19,  313,  it  is  held, 
that  if  the  comt  was  mi.^t.iken  ns  to  matter  of  fact,  it  would  seem  to 
be  the  more  Correct  cour-e  to  corrert  the  mistake  on  a  rehearing  there- 
by reviewed;  that  it  is  not,  it  is  believed,  the  practice  of  the  English 
court  of  chancery  on  the  hearing  of  a  petition  of  review  to  examine 
the  proofs  in  the  case.  But  in  that  country  the  facts  are  found  by  the 
court  in  first  instance  and  if  those  facts  sustain  or  are  a  proper  foun- 
dation for  the  decree,  tlie  bill  of  review  must  be  dismi.-^sed.  The  facts 
tiius  found  are  conclusive  in  the  CHse.  In  Ohio  the  bill,  answers  and 
decree,  const  tuting  what  they  call  the  record,  is  what  coLiies  before 
the  reviewing  court.  In  that  state,  however,  it  has  been  held  ^7  Id. 
372j  that  the  original  bill,  answers',  exhibits,  and  depositions  are  open 
for  examination,  the  court  examines  the  whole  case  and  decides  as  if 
the  m:itter  was  open  before  ihem  in  the  same  situaiion  as  it  was  when 
the  decree  was  pronounced.  If  this  course  were  not  pursued  where 
the  decree  contiiins  no  statement  of  facts  found  or  principles  decided, 
the  b  11  for  error  in  law  would  be  useless.  The  difference  between  the 
Ohio  practice  in  drawing  up  and  entering  decrees  and  the  practice  in 
En;iland  and  New-\  ork,  it  is  said,  accounts  for  the  departure  in  Ohio 
from  what  is  elsewhere  an  established  rule  of  proceeding.  (^Ludlow's 
heirs  v.  Kidd's  heirs,  2  Id^  405-6  ;  Slradtr  v.  Heirs  of  Byrd  et  al.  7 
Id.  332.)  But  where  the  facts  t>re  expressly  found  and  stated  in  the 
decree,  there  seems  no  reason  why  the  English  practice  should  be 
departed  from.     (Sleiens  v.  Hay,  supra.) 

In  Missis-ippi,  if  the  chsc  when  decided  was  ready  for  final  hearing 
and  the  c<.urt  erred  in  rendering  tlie  decree  only,  the  whole  case  is  not 
re-opened  ;  hut  the  error  in  decree  will  be  corrected  so  as  to  conform 
to  the  law.  Bict  if  it  was  not  ready  for  final  hearing  the  whole  is 
open  for  exannnaiion.  (^Mercer,  adminislratur,  v.  Stark,  1  Smedes  & 
Marshall  C.  R.  479.) 

I  In  case  of  miscasting  and  miscounting,  wl  ere  the  matter  demon- 
stmtively  appears  from  the  decree  itself  to  be  mistaken,  it  may  be 
explained  and  leconciled  by  order.  Seton  on  Decrees,  399,  and  cases 
there.] 

The  original  decree  will  bo  reversed,  because  the  testimony  of  an 
incompetent  wi  ness  who  was  off.red  hy  the  prevailing  party  was 
received  in  the  original  suit.  {Ddle  et  al.  \.  Woods  et  al.,  \ 4  Ohio 
Rep.  (Gribwold'e)  125,  122.) 


101  FRAME  AND  END  OF  THE     [ChAP.  L 

as  if  an  absolute  decree  be  made  against  a  person^ 

— — 1 ST ■ •- 

So  when  the  bill  alleges  title  in  several  and  the  decree  pursues  its 
allegations,  but  tlie  proof  shows  title  to  recover  in  part  of  complain- 
ants only.  The  probata  and  the  allegata  must  correspond.  (.Idem. 
126,  122.) 

Again,  in  Ohio,  on  bill  of  review  in  chancery  to  review  the  decree 
of  a  county  supreme  court  of  that  state,  it  was  held  too  late  to  object 
that  the  appeal  from  the  common  pleas  was  not  regular  {Brown  v, 
Haines  et  al.  12  Ohio  R.  1.)  The  finding  of  the  court  below  upon  the 
facts  will  be  treated  as  a  rule  of  practice,  with  not  less  respect  than 
the  finding  of  a  jury  on  question  of  fact,  fairly  submitted  to  them  ;  and 
that  finding  will  not  be  reversed  on  mere  difference  of  opinion  as  to 
the  weight  of  evidence.  If  the  party  thought  the  facts  of  the  case 
wrongly  determined,  say  in  court,  he  should  have  asked  a  rehearing 
rather  than  pursue  a  bill  in  the  nature  of  a  writ  of  error.  (Buckley  v. 
Gilmore  cj-  Hifkins,  12  Ohio  R.  75,  63.) 

It  does  not  lie  on  a  decree  in  a  petition  for  divorce  in  Ohio.  It  was 
contended  under  the  statute  of  that  state  declaring  that  all  proceedings 
under  the  acts  concerning  marriages  and  divorces  shall  be  in  chancery, 
that  all  the  incidents  of  a  suit  in  chancery  attach  to  these  proceedings, 
and  among  others  the  right  of  review.  Such,  say  the  court,  could  not 
have  been  the  intention  of  the  legislature.  Where  a  divorce  is  granted, 
upon  which  one  of  the  parties  contracts  new  relations  and  a  third 
party  acquires  rights,  it  cannot  be  that  a  process  could  be  had  to  re- 
verse a  decree,  the  consequence  of  which  would  be  a  severance  of  all 
those  new  relations.  Such  anomalous  mischief  cannot  be  engrafted 
on  the  practice  of  our  courts  except  by  clear  and  explicit  legishitive 
enactment.  (Bascom  v.  Bascom,  7  Ohio  R.  465,  condensed  from  7 
Hammond  R.  125,  2d  part.) 

Persons  interested  in  the  subject,  though  not  parties  to  the  original 
bill,  may  become  such  to  the  bill  of  review  ;  and  where,  on  overruling 
demurrer,  the  decree  is  reversed,  the  bill  of  review,  as  to  such  new 
parties,  will  be  retained  as  a  supplemental  bill  and  stand  for  plea  or 
answer,  and  the  cause  be  proceeded  in  upon  original  and  supplemen- 
tal bills.  {Ludlow's  heirs  v.  Kidd's  heirs,  2  Ohio  R.  405-6  ;  condensed 
from  2  Hammond  372.)  In  Bank  of  U.  S.v.  White  et  al,  8  Peters 
268,  262,  it  was  held  that  all  the  parties  to  the  original  decree  ought 
to  join  in  the  bill  of  review.  But  parties  who  cannot  be  benefitted  by 
a  modification  or  reversal  of  t!ie  decree  should  n  t  file  the  bill. 
[Webb  v.  Pell,  3  Paige's  C.  R.  368.]  If  not  aggrieved  by  the  decree 
no  party  to  it  can  by  the  general  principles  of  equity,  claini  a  reversal, 
whatever  may  have  been  his  right  to  insist  on  the  error  at  the  original 
hearing  or  on  an  appeal.  {Whiting  et  al.  v.  The  Bank  of  the  United 
States,  13  Peters  14,  6.) 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  101 

who  upon  the  face  of  it  appears  to  have  been  at 
the  time  an  infant  (/).     A  bill  of  this  nature  may  be  102 

brought  without  the  leave  of  the  court  previously 
given  (?Ai)(l).  But  if  it  is  sought  to  reverse  a  de- 
cree signed  and  enrolled,  upon  discovery  of  some 
new  matter  (n),  the  leave  of  the  court  must  be  first 
obtained  (o)  ;  and  this  will  not  be  granted  but  upon 
allegation  upon  oath  that  the  new  matter  (j?)  could 
not  be  produced,  or  used  (q)  by  the  party  claiming 
the  benefit  of  it  at  the  time  when  the  decree  was 
made  (r).  If  the  court  is  satisfied  that  the  new 
matter  is  relevant  and  material,  and  such  as  might 
probably  have  occasioned  a  different  determination  r^^i 
(s)  it  will  permit  a  bill  of  review  to  be  filed  (t)(2). 

(I)  Prac.  Reg.  225,   Wy.   Ed.  17  [Livingston  v.  Huhhs,  3  3.  C.R.  124; 

Ves.  178.  Respass   v.-  M'Clenahan,  2    Marsh. 

(m)    2    Atk.    534;    Houghton   v.  578;   Winston  v.  Executor  of  John- 
West,  2  Bro.  P.  C.  88,  Toml.  Ed.  son,  2  Muiif.  .305.] 

(n)  2  Ves.  576  ;  3  P.  Wms.  372  ;         (s)  Lord  Portsmouth  v.  Lord  Ef- 

Nele.  Rep.  52.  fivgham,  1  Ves.  430;  Bennetv.  Lee, 

(o)  Tothill,  42;   2  Alk    534;  17  2  Atk.  529 ;  and  see  Willanv.Wil- 

Ves.  177.     [See  cases,  note  (1.)]  Ian,  16  Ves.  86. 

(/>)   See   O'Brien  v.  O'Connor,   2         (t)   Lord  Portsmouth  v.  Lord  Ef- 

Ball  &.  B.  146.  Jingham,    1    Ves.    4.30 ;     Young    v. 

(9)  See  1  Ves.  434;  Pa<'erso«an(i  Keighly,    16  Ves.  348.      But    leave 

Slaughter,  Ambl.  292,  and   16  Ves.  to   file  a  bill  of  review  is   matter  of 

350.  discretion  with  the  court.     See  Wil- 

(r)  2   Bro.  P.  C.  71.  Toml.  Ed.;     son  v.  Webb,  2  Cox,  R.  3. 
Pract  Reg.  95,  Wy.  Ed.  ;  Ambl.  293. 

[For  the  form  of  a  bill  of  review  for  error  or  law  apparent  in  the  • 

decree,  see  Willis.  368.] 

As  to  bill  of  review  on  discovery  of  new  matter,  see  next  page  and 
nolep. 

( 1 )   [  Wehh  V.  Pell,  1  Paijre's  C.  R.  564  ;  Edmonson  v.  Mosehy's  heirs, 
4  J.  J.  Marshall's  R.  500  ;  Bleight  v.  iWllcoy,  4  Monroe's  R.  145  ] 

A  person  who  was  not  a  pary  to  a  suit  for  the    construction  of  a  Bill  to  re-drtor- 
witl,  may  file  a  bill,  after  a  decree  enrolled  in  that  suit,  to  have  the  ™'Tonemi'<u'on 
conslruclitin  uf  the  will  re-considered  and  re  delermined,  without  leave  alter  decree, 
of  the  court.      Urijuhart  v.  Uriuharl,  13  Sim.  623. 

(2;  [Wiser  v.  BUchly,  2  J.  C.  R.  488;  Furman  v.  Coe,  on  appeal, 


102  FRAME  AND  END  OF  THE    [ClIAP.  I. 

Error  in  matter  of  form  only,  though  apparent  on 

1  C.  C.  E.  96.  New  matter,  it  hns  been  said,  is  no  ground  for  a  bill 
of  review,  unless  it  was  discovered  after  the  decree  -was  pronounced. 
•  Winston  v.  Executors  of  Johnson,  2  Munf.  305;  but  this  is  not  so,  it 
is  sufficient  if  it  did  not  come  to  liis  knnwled^e  till  after  publication, 
or  when,  by  the  rules  of  the  court,  the  party  could  not  make  use  of  it. 
If  it  came  to  the  know'edge  of  the  party's  attorney,  solicitor,  or  agent, 
before  the  cause  was  heard,  it  is  considered  as  notice  to  the  party. 
Morris  v.  Le  Neve,  3  Atk.  35 ;  and  see  Standish  v.  Radley,  2  Aik. 
199  ;  Lord  Portsmouth  v.  Lord  Effingham,  1  Ves.  sen.  43-1. 

And  it  has  been  said,  in  Kentucky,  that  the  complainant  must  allege 
new  matter  not  necessarily  in  issue  upon  the  original  bill.  Tilman  v. 
Tilman,  4  J.  J.  Marshall's  R.  119. 

A  bill  of  review  will  not  b^  sustained  on  the  ground  that  the  chan- 
cellor who  made  the  decree  was  interested  in  the  stock  of  the  com- 
plainants, a  corporation,  if  the  decree  was  by  consent  or  merely  formal, 
so  that  the  chancellor  did  not  personally  exercise  his  judgment  in  it. 
Nor  will  it  be  sustained  fiT  newly  discovered  matter  of  error  in  the 
proceedings,  which,  with  ordinary  diligence,  the  party  might  have  dis- 
covered before.  Nor  unless  the  complainant  shows  himself  aggrieved 
by  the  decree.     Lansing  v.  Albany  Ins.  Co.,  Hopk.  102. 

And  additional  circumstances,  which  mi-rely  confirm  facts  proved  in 
the  original  cau.-e,  do  not  furnish  sufficient  j^rounds  for  a  bill  of  review. 
Randolph's  executors  v.  Randolph''s  executor,  1  Hen.  &l  Munf.  180. 
Newly  discovered  evidence,  which  goes  to  impeach  the  character  of 
witnesses  examined  in  the  origin  il  suit,  or  of  cumulative  evidence  to  a 
litigated  fact,  is  not  sufficient.  The  matter  of  fact  newly  discovered 
must  be  relevant,  and  materially  aff^^cting  the  ground  of  the  decree. 
Livingston  v.  Hubhs,  3  J.  C.  R.  1 J4  ] 

Ti  e  rule  as  laid  down  in  Ohio  is  this  :  If  the  application  for  revers- 
ing the  decree  be  for  newly  discovered  evidence,  it  should    not  be  of 
such  as  was  before  the  court  on  former  hearing  or  merely  cumulative. 
If  a  rule  should  be  adopted  of  rever.-ing  a  decree  merely  to  let  in  cu- 
•  mu'ative  evidence,  it  is  difficult  to  see  where  a  case  could  be  ended. 

As  often  as  a  new  witness  is  discovered,  there  must  then  be  a  review, 
and  nothing  short  of  statute  of  limitations  would  put  an  end  to  the 
litigation.  The  matter  must  not  only  be  new,  but  such  as  the  party 
could  not  by  reasonable  diligence  have  known ;  for  if  there  were  any 
negligence  or  laches  in  this  respect  it  destroys  the  title  to  relief. 
{Stevens  v.  Hay  >t  al,  6  Ohio  R.  (Griswold's)  317-319,  313;  also 
Kelly  V.  Stanl»ry.  13  Id.  410-41 1,  arg.) 

[.'^nd  it  has  been  said,  in  the  chancery  of  Kentucky,  that  a  bill  of 
review  will  not  be  granted  upon  a  fact  which  was  formerly  in  issue  in 


evi- 
dence of  matter 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  102 

the  face  of  a  decree,  seems  not  to  have  been  con- 

siderd  as  sufficient  ground  for  reversinfr  the  decree 

(s)  ;  and  matter  of  abatement  has  also  been  treated  103 

^s  not  capable  of  being  shown  for  error  to  reverse  abatei^nt^'  ''^ 

a  decree(^). 

It  has  been  questioned  whether  the  discovery  of  npcegg'^^y'th't 

„  . ,  ,     •       •  •         ,1  •  I   •     1  the  new   matter 

new  matter  not  m  issue  ui  the  cause  m  which  a  should  be 
decree  has  been  made,  could  be  the  ground  of  a  musue. 
bill  of  review  (ti)  ;  and  whether  the  new  matter  on 
which  bills  of  review  have  been  founded  has  not 
always  been  new  matter  to  be  used  as  evidence  to 
prove  matter  in  issue,  in  some  manner,  in  the  origi- 
nal bill  (x).     A  case,  indeed,  can  rarely  happen  in 
which  new  matter  discovered  would  not  be,  in  some 
degree,  evidence   of  matter  in  issue  in  the  original 
cause,    if   the   pleadings    were    properly   framed. 
Thus,  if  after  a  decree,  founded  on  a  revocable 
deed,  a  deed  of  revocation  and  new  limitation  were 
discovered ;  as  it  would  be  a  necessary  allegation 
of  title  under  the  revocable  deed  that  it  had  not      [8^] 
been  revoked,  the  question  of  revocation  would 

(s)  Jones  V.  Kenrick,  5  Bro.  P.  C.  (/)   Slingsby  v.Hale,  1  Ca.inCha. 

244,  Toml.Ed.;  but  the  cause  was  122;  S.  C.  1  Eq.  Ca.  Ab.  164. 

compromised.      Hartwell  v.    Town-  («)  See  16  Vee.  354. 

send,  2  Bro.  P.  C.  107,  Toml.  Ed.  (x)  Ambl.  293. 

the  same  cause  or  evidence  newly  discovered,  unless  the  evidence  be 
in  writing  or  of  record.  Head  v.  Had's  administrator,  3  A.  K.  Mar- 
shall's K.  121.  Also,  that  where,  upon  a  bill  of  review,  the  decree  is 
reviewed  or  impeached,  the  defendants,  provided  the  decree  was  ob- 
tained by  default,  should  be  prrmitted  to  file  answers  or  to  plead,  so 
that  the  matter  of  the  original  bill  may  be  litigated  between  the  parties. 
Maypsbick  v.  Founlleroi/,  3  J.  J.  Marshall's  R.  536.] 

If  the  facts  in  petition  for  the  bill,  verified  by  oath,  l;iy  a  sufficient 
foundation  for  the  bill,  the  court  will  not  inquire  if  he  can  prove  the 
fact?.  The  merits  cannot  be  tried  on  the  petition.  (Quick  v.  Lilly,  2 
Green  C.  R.  258,  255.) 

11 


103  FRAME  AND  END  OF  THE     [ChAP.  I. 

have  been  in  issue  in  the  original  cause,  if  the 
pleadings  had  been  properly  framed.  So  if  after 
a  decree  founded  on  a  supposed  title  of  a  person 
claiming  as  heir,  a  settlement  or  will  were  discovered 
which  destroyed  or  qualified  that  title,  it  would  be 
a  necessary  allegation  of  the  title,  of  the  person 
claiming  as  heir,  that  the  ancestor  died  seised  in 
fee-simple,  and  intestate.  But  if  a  case  were  to 
arise  in  which  the  new  matter  discovered  could  not 
^n.A  be  evidence  of  any  matter  in  issue  in  the  original 

cause,  and  yet  clearly  demonstrated  error  in  the 
decree,  it  should  seem  that  it  might  be  used  as 
ground  for  a  bill  of  review,  if  relief  could  not  other- 
wise be  obtained  {x)  (1).  It  is  scarcely  possible, 
however,  that  such  a  case  should  arise  which  might 
not  be  deemed  in  some  degree  a  case  of  fraud,  and 
the  decree  impeachable  on  that  ground.  In  the 
case  where  the  doubt  before  mentioned  appears  to 
have  been  stated,  the  new  matter  discovered,  and 
alleged  as  ground  for  a  bill  of  review,  was  a  pur- 
chase for  valuable  consideration,  without  notice  of 
the  plaintiff's  title  ;  this  could  only  be  used  as  a 

{x)  This  court  refused  its  leave  to  Ord  v.  Noel,  6  Madd.  127,  and  Bing- 

file  a  bill  of  review,  where  it  would  ham  v.  Dawson,  IJac.R.  243,  which, 

have  been  the  means  of  introducing  although  cases  relating  to  supplemen- 

an  entirely  new  case,  of  the  matter  tal  bills  in  the  nature  of  bills  of  re- 

of  which  the  plaintiff  was  sufficiently  view,  illustrate   this  principle.     See 

well  apprized  to  have  been  able,  with  also  Ludlow  v.  Lord  Macartney,  2 

the  exertion  of  reasonable  diligence,  Bro.  C.  C.  67,  Tornl.  Ed.;  Le  Neve 

to  have    brought  the  same  at  first  v.  Norris,  2  Bro.  P.  C.  73,  Toml.  Ed. ; 

completely  belore  the  court.  Young  McNeill  v.  Cahill,  2  Bligh,  P.  C.  228. 
v.  Keighly,   16  Ves.  348.     And  see 

(1)  See  Partridge  v.  Osborne,  note  to  page  108,  infra.,  and  note,  p. 
102,  supra. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  104 

defence ;  and  it  seems  to  have  been  thought  that 
ahhough  it  might  have  been  proper,  under  the 
circumstances,  if  the  new  matter  had  been  dis- 
covered before  the  decree,  to  have  allowed  the  de- 
fendant to  amend  his  answer  and  put  it  in  issue, 
yet  it  could  not  be  made  the  subject  of  a  bill  of  re- 
view :  because  it  created  no  title  paramount  to  the 
title  of  the  plaintiff,  but  merely  a  ground  to  induce  a 
courtof  equity  not  to  interfere.     And  where  a  settle-  1^^ 

ment  had  been  made  on  a  marriage  in  pursuance 
of  articles,  and  the  settlement  following  the  words 
of  the  articles  had  made  the  husband  tenant  for 
life,  with  remainder  to  the  heirs -male  of  his  body, 
and  the  husband  claiming  as  tenant  in  tail  under 
the  settlement  had  levied  a  fine,  and  devised  to 
trustees,  principally  for  the  benefit  of  his  son,  and 
the  trustees  had  obtained  a  decree  to  carry  the  trusts 
of  the  will  into  execution  against  the  son,  the  son 
afterwards,  on  discovery  of  the  articles,  brought  a 
bill  to  have  the  settlement  rectified  accordrng-  to 
the  articles,  and  a  decree  was  made  accordingly. 

In  this  case  the  new  matter  does  not  appear  to 
have  been  evidence  of  matter  in  issue  in  the  first 
cause,  but  created  a  title  adverse  to  that  on  which 
the  first  decree  was  mad  0(2/). 

A  bill  of  review  upon  new  matter  discovered  has      [88] 
been  permitted  even  after  an  aflfirmance  of  the  de-  ^lllrm 
cree    in    parliament  (z)  ;  but    it    may  be    doubted  parurme'^nt' 
whether  a  bill  of  review  upon  error  in  the  decree 

(y)   Robertsv.  KingdyjlVea.^SS.  directed   as  to   the   fact  of  the    dis- 

If  this  case  is  accurately    reported,  covery  of  the  articles.     See   Young 

the  bill  seems  to  have  been  filed  with-  v.  Keighly,  16  Ves.  348. 

out  the   previous   leave  of  the  court;  (z)   Barlion  v.  Searle,  1  Vern. 416; 

and  on  the  hearing  an  inquiry  was  and  see  16  Ves.  89. 


Bill  ior  review 
rmance 
of  the  decree  in 


105  FRAME  AND  END  OF  THE   [ChAP.  L 

itself  can  be  brought  after  affirmance  in  parliament 
Second  bill  of  (a).     If  uDon  a  bill  of  review  a  decree  has  been 

review.  v    y  r 

reversed,  another  bill  of  review  may  be  brought 
Bin  of  review  upon  tho    decrco  of  reversal  (b)  (1).     But   when 

must  he  brought       *  -^  ^  . 

"^cnrs"  ^'"^''^    twenty  years  have   elapsed  (2)   from  the  time  or 

106  pronouncing  a  decree,  which  has  been  signed  and 
enrolled,  (3)  a  bill  of  review  cannot  be  brought  (c)  ; 

(a)  1  Vern.  418.  1  Bro.  P.  C.  453,  Toml.  Ed. ;  Ed- 

{!))  2  Chan.  Pract.  633  ;  and  see  wards  v.  Carroll,  2  Bro.  P.  C.  98,. 

Ncal  V.  Robinson,  Dick.  15  ;  but  see  Toml.  Ed. ;  Lytton  v.  Lytton,4  Bro. 

1  Vera.  417.  C.  C.  441.     [See  Thomas  v.Harvie, 

(c)   Sherrington  v.  Smith,  2  Bro.  10  Wheat.  106.] 

P,  C.  62,  Toml.  Ed. ;  Smythe  v.  Clay, 

(1)  From  an  examination  of  authorities  to  ascertain  the  usages  of 
courts  of  equity,  which  by"  statute  in  Ohio  were  to  guide  the  court  in 
their  mode  of  proceeding,  the  following  rule  was  deduced  :  When  a 
demurrer  to  a  bill  of  review  has  been  sustained  or  allowed — in  other 
words,  where  according  to  our  practice  the  bill  has  been  dismissed' 
and  the  original  decree  thereby  atfirmed — no  subsequent  bill  of  review- 
will  lie ;  but  where  the  original  decree  has  been  reversed,  this  decree 
of  reversal  may  be  reviewed.  The  rule  is  based  on  sound  reason. 
Where  tliere  have  been  two  concurrent  decrees,  as  in  the  case  of  the 
demurrer  allowed,  it  is  time  that  the  litigation  should  be  ended ;  but 
where  the  original  decree  has  been  reversed,  there  the  matter  of  equity 
may  still  be  considered  as  doubtful.  SiraJer  v.  Heirs  of  Byrd  el  al.y 
7  Ohio  R.  331,  330,  (condensed  from  7  Hammond  R.  184.) 

(2)  Twenty  years  is  the  English  rule,  and  here  five,  in  analogy  to- 
the  time  of  bringing  writs  of  error  for  matters  apparent.  Story  Eq. 
PI.  5  410.  [Although  bills  of  review  are  not  strictly  within  the  statutes 
of  limitation,  yet  a  court  of  equity,  in  analogy  to  the  provisions  of 
the  judiciary  act  concerning  appeals,  will  not  allow  a  bill  of  review  to 
be  filed  after  five  years.  Thomas  v.  Hircie,  10  Wheat.  146.  Yet  see 
Edwards  v.  Carroll,  5  B.  P.  C.  466 ;  6  B.  C.  C.  395 ;  SmUh  v.  Clay, 
Ambl.  645,  but  more  full,  3  B.  C.  C.  639.  And,  ^uer^— whether  a  bill 
of  review  on  the  ground  of  newly  discovered  evidence,  will  be  governed 
by  such  limitation  ?  In  such  case  it  would  seem  to  be  discretionary 
with  the  court.     lb.] 

When  the  saving  clause  of  statute  of  limitations  gives  right  to  re- 
view decree  to  one  of  the  parties,  and  the  right  is  entire,  the  rijht  of 
reversal  enures  to  benefit  of  all.  (Massie^s  heirs  v.  Matthew's  executors 
and  Wallace,  12  Ohio  R.  353,  351.) 

(3)  It  is  said,  enrolments  in  England  are  but  little  known  or  prac- 


^.  III.]  SEVERAL  KINDS  OF  BILLS.  106 

and  after  a  demurrer  to  a  bill  of  review  has  been 
allowed,  a  new  bill  of  review  on  the  same  ground 
cannot   be  brought  (d).     It  is   a  rule  of  the  court,  n"tTrevent''the 

f  ■.         f      .         .  I'll         /»  •  111  executon  of  the 

that  the  brmgmg  a  bill  or  review  shall  not  prevent  former  decree. 
the   execution    of  the   decree  impeached  ;  and    if 
money  is  directed  to  be  paid,  it  ought  regularly  to 
be  paid  before  the  bill  of  review  is  filed,  though  it 
may  afterwards  be  ordered  to  be  refunded  (e)  (1). 

(d)  Dunnyv.  Filmore,  I  Vern.  135. 

(e)  Ord.  in  Cha.  Ed.   Bea.  3;    2  Brown  P.  C.  65,  Toml.  Ed.  note. 

ticed,  and  therefore  bills  of  review  rarely  brought.  But  in  America 
decrees  are  matters  of  record  and  deemed  enrolled  as  of  tlie  preceding 
term  so  as  such  bill  here  is  the  proper  and  ordinary  proceeding.  (Story 
Eq.  PI.  !j  403.) 

An  criginil  decree  is  to  be  deemed  recorded  and  enrolled,  by  the 
practice  of  the  United  States  courts  in  chancery,  as  if  the  term  in 
which  the  final  decree  was  passed.  A  bill  exhibi  ied'  afterwards  to 
revise  errors  for  want  of  parties,  or  want  of  proper  proceedings  after 
the  decree  against  his  heirs,  after  death  of  a  party,  is  a  bill  of  review 
in  contradistinction  to  a  bill  in  the  nature  of  a  bill  of  review  ;  which 
lies  only  where  there  has  been  no  enrolment  of  the  decree,  the  former 
being  by  the  original  parties  and  their  privies  in  representation  is  also 
properly  a  bill  of  review  in  contradistinction  to  an  original  bill  in  the 
nature  of  a  bill  of  review  which  brings  forward  the  interests  affected 
by  the  decree,  other  than  those  founded  in  privity  of  representation. 
{Whiting  et  al.  v.  The  Bank  of  the  Uniled  Slates,  13  Peters,  13,  6.) 

CI)  By  the  third  and   fourth  of  Lord   Bacon's  orders,  "No  bill  of  Pre-requieito  of 

.„,,•,  ,  .  •„  I  filin?nbillofre- 

review  shall  be  admitted,  or  any  other  new  bill  to  cliange  matter  view,  or  a  bill  of 
decreed,  except  the  decree  be  first  obeyed  and  performed."  The  true  *  *'''*'^'"®- 
interpretation  of  these  words  is  this — that  before  a  party  can  file  a  bill 
of  review,  or  a  bill  of  the  nature  of  a  bill  of  review,  even  by  leave,  he 
must  perforin  so  much  of  the  decree  as  he  is  bound  to  perform  at  that 
time.  But  he  may  file  a  bill  of  review,  or  a  bill  of  the  nature  of  a  bill 
of  review  at  any  time  after  leave  is  obtained,  even  before  he  has  per- 
formed the  decree,  as  regards  those  things  which  by  the  decree  he 
was  not  bound  to  perform  till  a  period  subsequent  to  the  time  when 
such  leave  is  obtained.     Partridge  v.  Usborne,  5  Russ.  195. 

[See  Wiser  v.  Blachhj,  2  J.  C.  R.  488.  Nothing  will  excuse  the 
.party  from  paying  the  money  and  costs,  but  evidence  of  his  inability 
<to  perform  it.     There  is  wisdom  in  the  establishment  of  such  a  pro- 


106  FRAME  AND  END  OF  THE     [ClIAP.  I^^ 

Frame  thereof.        In  a  bill  of  tliis  naturc  it  is  necessary  to  state  (/*) 

the  former  bill,  and  the  proceedings  thereon  ;  the 

decree,  and  the  point  in  which  the  party  exhibiting 

the  bill  of  review  conceives  himself  aggrieved  by 

[89]       it  (g)  ;  and  the  ground  of  law,  or  new  matter  dis- 

1^7  covered,  upon  which  he  seeks  to  impeach  it ;  and  if 

the  decree  is  impeached  on  the  latter  ground,  it 
seems  necessary  to  state  in  the  bill  the  leave  ob- 
tained to  file  it  (h),  and  the  fact  of  the  discovery  (i). 
It  has  been  doubted  whether  after  leave  given  to 
file  the  bill,  that  fact  is  traversable;  but  this  doubt 
may  be  questioned  if  the  defendant  to  the  bill  of 
review  can  offer  evidence  that  the  matter  alleged 
in  the  bill  of  review  was  within  the  knowledge  of 
the  party  who  might  have  taken  the  benefit  of  it  in 
the  original  cause  {k).     The  bill  may  pray  simply 

(f )  2  Prax.  Aim.  Cur.  Cau.  520  ;  upon  a  supplemental  bill  in  nature  of 
2  Chan.  Prac.  629.  a  bill  of  review,  the  court  seemed  to 

(g)  4  Vin.  Ab.  414,  PI.  5.  be  of  opinion   that  the  fact  of  the 
(A)  See  1  Vern.  292;  Boh.  Curs,     discovery  was  traversable;  and  not 

Ganc.  396,  397.  being    admitted   by  the    defendant, 

(i)     Hanhury   v.  Stevens,     Trin.  ought  to  have  been  proved  by  the 

1784,  in  Chancery.  plaintiff  to  entitle   him  to  proceed  to 

(k)  In  the  above  mentioned  case  the  hearing  of  the  cause. 

of  Hanbury  and  Stevens,  which  was 

vision  and  it  ought  to  be  duly  enforced.  Its  object  Is  to  prevent  abuse 
in  the  administration  of  justice,  by  filing  bills  of  reviews  for  delay  and 
vexation,  or  otherwise  protracting  the  litigation  to  the  discouraoement 
and  distress  of  the  adverse  party.  lb. ,  Livingston  v.  Hubbs,  3  J-  C.  R. 
124.  It  has  been  said,  in  North  Carolina,  that  placing  the  amount  of 
a  decree  in  the  hands  of  tiie  master,  in  bank  notes,  is  such  a  substan- 
tial compliance  with  the  order  of  the  court  as  will  save  the  party  from 
an  imputed  neglect  or  contempt,  and  authorize  the  filing  ot  a  bill  of 
review.     Taylor  v.  Person,  2  Hawks'  R.  293.] 

[As  to  deposit  on  filing  a  bill  of  review,  see  Wehh  v.  Pell^  1  Paige's 
C.  R.  564;  and  173,  Rule  of  N.  Y.  Chancery. 

As  to  the  practice  in  Virginia  upon  a  bill  of  review,  see  note  to 
Ellzley  V.  Lane's  executors,  2  Hen.  &  Munf.  589  ;  Quarrier  v.  Carter^ s 
representatiies,  4  Hen.  &-  Munf.  242.] 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  107 

that  the  decree  may  be  reviewed,  and  reversed  in 
the  point  complained  of,  if  it  has  not  been  carried 
into  execution  (Z).  If  it  has  been  carried  into  execu- 
tion, the  bill  may  also  pray  the  further  decree  of  the 
court,  to  put  the  party  complaining  of  the  former 
decree  into  the  situation  in  which  he  would  have 
been  if  that  decree  had  not  been  executed.  If  the 
bill  is  brought  to  review  the  reversal  of  a  former 
decree,  it  may  pray  that  the  original  decree  may 
stand  (m).  The  bill  may  also,  if  the  original  suit 
has  become  abated,  be  at  the  same  time  a  bill  of 
revivor  (n)  (1).  A  supplemental  bill  may  likewise 
be  added  if  any  event  has  happened  which  requires  mQ-i 
it  (o)(2);  and  particularly  if  any  person  not  a  party  108 

to  the  original  suit  becomes  interested  in  the  sub- 
ject, he  must  be  made  a  party  to  the  bill  of  review 
by  way  of  supplement  (p). 

To  render  a  bill  of  review  necessary  the  decree  Supplemental 

•'  bill  in  the  nature 

sought  to  be  impeached  must  have  been  signed  and  "Lw!""  "^  ^^' 
enrolled.     If,  therefore,  this  has  not  been  done,  a 
decree  may  be  examined  and  reversed  upon  a  spe- 
cies of  supplemental  bill,  in  the  nature  of  a  bill  of 
review  where  any  new  matter  has  been  discovered 

(l)  17  Ves.  177.  (p)  Sands -v.  Thorowgood,  Hardr. 

(m)  2  Chan.  Prac.  634.  104.     See  supra,  p.  106,  note,  and 

(n)  2  Prax.  Aim.  Cur.  Cane.  522.  101,  note. 

(0)  Price  v.  Keyte,  1  Vern.  135. 

(1)  Such  a  bill  must  be  founded  upon  an  affidavit  of  tlie  discovery 
of  new  matter,  and  cannot  be  filed  witliout  the  special  leave  of  the 
court.  Neither  can  it  be  filed  wittioiit  maldiig  the  deposit,  or  giving 
the  security  required  upon  a  bill  of  review.  Wilkinson  v.  Parish,  3 
Paige's  C.  R.  653.] 

(2)  Thus  the  bill  may  partake  of  the  compound  character  of  a  bill 
of  review,  of  revivor  and  of  supplement ;  and  be  maintainable  if  it 
present  facts  that  go  to  the  merits  of  the  original  decree.  Wliiting  et 
al.  V.  The  Bank  of  the  United  Stales,  13  Peters,  13,  6. 


108 


FRAME  AND  END  OF  THE    [ChAP.  I. 


109 


[91] 


since  the  decree  {q)  (1) .  As  a  decree  not  signed  and 
enrolled  may  be  altered  upon  arehearing  without  the 
assistance  of  a  bill  of  review,  if  there  is  sufficient  mat- 
ter to  reverse  it  appearing  upon  the  former  proceed- 
ings (r)  (2)  the  investigation  of  the  decree  must  be 


{q)  2  Atk.  40,  178;  3  Atk.  811; 
Gartside  v.  Isherwood,  Dick.  612 ; 
17  Ves-  177;  or,  at  the  least,  the 
new  matter  should  have  been  discov- 
ered after  the  time  when  it  could 
liave  been  introduced  into  the  original 
cause.     Ord  v.  JSoel,  6  Madd.  127 ; 


and  see  Barrington  v.  O'Brien,  2 
Ball  &  B.  140.  See  p.  106,  note, 
supra  ;  [  Wiser  v.  Blackly,  2  J.  C.  R. 
488  ;  Lawrence  v.  Cornell,  4  J.  C.  R. 
542.] 

(r)  The  rehearing,  which  is  thus 
far  alluded  to,  not  being  sought  in 


Supplemental 
bill  in  the  nature 
of  a  bill  of  re- 
Tiew,  and  to 
bring  forward 
new  matter. 


Petition  of  re- 
hearing  dis- 
missed became 
grounded  oa 
Hew  facta. 


(1)  A  plaintiff,  or  a  defendant  against  whom  a  decree  is  made,  may 
obtain  leave  to  file  a  supplemental  bill  in  the  nature  of  a  bill  of  review, 
to  bring  forward  matter  discovered  after  such  decree,  although  such 
matter  is  not  capable  of  being  used  as  evidence  of  anything  previously 
put  in  issue,  but  constitutes  an  entirely  new  issue.  Partridge  v.  Us- 
borne,  5  Russ.  195  ;  Barnes  v.  Ojfer,  6  Russ.  225,  note.)  Thus,  where 
a  person  who  is  afterwards  decreed  to  perform  a  contract  for  the  pur- 
chase of  a  timber  estate,  applies  to  the  auctioneer  for,  atjd  obtains  a 
written  statement  of  the  quantity  of  timber  by  a  surveyor,  before  he 
bids  for  the  estate ;  and  after  being  decreed  to  perform  his  contract, 
he  discovers  that  the  quantity  of  timber  is  much  less  than  is  repre- 
sented in  such  statement ;  the  court  will  give  him  leave  to  file  a  sup- 
plemental bill  in  the  nature  of  a  bill  of  review,  and  to  apply  to  have 
the  original  cause  set  down  to  be  reheard,  and  to  come  on  at  the  same 
time,  although  his  answer  to  the  original  bill  does  not  raise  any  objec- 
tion as  to  the  quantity  of  timber.  Partridge  v.  Usborne,  5  Russ.  195. 
In  this  case,  the  purchaser  adduced  evidence  of  the  auctioneer  and 
others  to  show  that  the  auctioneer  warranted  the  quantity  of  timber, 
and  stated  that  the  admeasurement  exhibited  by  him  to  the  purchaser 
agreed,  with  another  admeasurement  by  another  eminent  surveyor, 
although  in  reality  the  two  materially  differed.  But  the  fact  of  the 
warranty  was  controverted  by  the  evidence  of  a  greater  number  of 
persons:  and  neither  that  fact  nor  the  other  circumstance  above  men- 
tioned were  adverted  to  in  the  judgment  of  the  lord  chancellor,  Lord 
Lyndhurst. 

(2)  Where  in  a  suit  for  the  administration  of  a  testator's  personal 
estate,  part  of  which  is  undisposed  of,  the  bill  sets  forth  the  will  of  the 
testator,  made  some  years  before  his  death,  in  which  he  is  described  as 
of  a  certain  colony,  where  the  effects  of  intestates  are  not  distributed 


S.  III.]  SEVERAL  KL\DS  OF  BILLS. 


110 


brought  on  by  a  petition  of  re-hearing  (s)  (2) :  and 


respect  of  any  new  matter,  is  ob- 
tained upon  certificate  of  counsel,  18 
Ves.  '323,  by  a  petition  merely,  which 
states  the  case  as  brought  before  the 
court  when  the  decree  was  made, 
Wood  V.  Griffiths,  1  Meriv.  35  ;  and 
the  grounds  on  which  the  re-hearing 
is  prayed,  1  Sch.  &  Lefr.  398.  And 
here  it  may  not  be  improper  to  notice, 
that  the  court  will  not,  without  con- 
cent, 3  Swanst.  234,  vary  a  decree 
after  it  has  been  passed  and  entered, 
«xcept  as  to  mere  clerical  errors,  Lane 
V.  Hobbs,  12  Ves.  458,  Weston  v.  Hag- 
gersion,  Coop.  R.  134;  Hawker  v. 
Buncombe,  2  Madd.  R.  391  ;  3 
Swanst.  234  ;  Tomlins  v.  Palk,  1 
Russ.  R.  475  ;  or,  matters  of  course,  7 
Ves.  293  ;  Pickard  v.  Mattheson,  7 
Ves.  293  ;  Newhouse  v.  Mitford,  12 
Ves.  456,  unless  upon  a  petition  of  re- 
hearing, or  upon  a  bill  of  review,  or 


bill  in  the  nature  of  a  bill  of  review,  4 
Madd.  32  ;  Grey  v.  Dickenson,  4 
Madd.  464  ;  Brackenbury  v.  Brack, 
enhury,  2  Jac.  &,  W.  391  ;  Willis  v. 
Parkinson,  3  Swanst.  233;  Brookjield 
v.  Bradley,  2  Sim.  &  Stu.  64,  accord- 
ing as  the  decree  has  or  has  not  been 
signed  and  enrolled ;  and  as  it  is  sought 
to  have  the  case  re-heard  as  originally 
brought  before  the  court,  or  accompa- 
nied with  new  matter.     See  Text. 

(s)  Taylor  v.  Sharpe,  3  P.  Wms- 
371 ;  2  Ves.  598  ;  Gore  v.  Pardon, 
1  Sch.  &  Lefr.  234 ;  2  Jac.  &  W. 
393.  It  must  be  remarked  that 
where  there  is  new  matter,  a  petition 
to  re-hear  the  original  cause  must  be 
presented,  and  be  brought  before  the 
court  at  the  same  time  as  the  supple- 
mental bill,  in  the  nature  of  a  bill  of 
review.  Moore  v.  Moore,  Dick.  66 ; 
17  Ves.  178. 


according  to  the  English  statute  of  distributions;  but  the  bi'l  prays 
that  the  property  undisposed  of  may  be  distributed  according  to  that 
statute ;  and  there  is  no  allegation  that  the  testator  was  domiciled  in 
the  colony,  or  that  the  law  of  England  is  not  applicable  to  the  distri- 
bution of  his  property,  either  in  the  bill,  or  in  the  answers,  or  in  the 
master's  report,  or  in  the  evidence,  or  at  the  hearing  ;  and  the  property 
is  orderi'd  to  be  distributed  according  to  the  statute  ;  but  afterwards  a 
petition  for  a  re-hearing  is  presented,  in  which  those  facts  are  alleged 
as  a  ground  for  a  re-hearing ;  such  petition  will  be  dismissed.  Neiin- 
son  v.  Slables,  4  Russ.  210. 

(2)  [A  petition  of  rehearing  will  be  dismissed,  if  it  suggests,  as  the 
ground  of  ro-hearing,  facts  not  alleged  in  the  pleadings.  Neiinson  v. 
Stables,  A  Russ.  210.  See  112,  113,  114,  and  115,  Rules  of  N.  Y. 
Chanrery.  A  re-hearing  is  not  a  matter  of  course,  except  in  the  cases 
provided  for  by  rule.  Travis  v.  Waters,  1  J.  C.  R.  48  ;  Eastbiirn  v. 
fKirk,  2  lb.  317;  Land  v.  Wickham,  1  Paige's  C.  R.  256;  Wiser  v. 
Blachly,' supra.  Where  a  decree  has  been  entered  by  consent,  there 
can  be  no  re-hearing.  Monell  v.  Lawrence,  12  J.  R.  521.  Nor  will  it 
be  granted  after  a  decree  to  account,  exceptions  to  a  master's  report 
taken  and  disallowed,  acquiescence  of  the  party  therein,  and  a  final 
report  made  up  and  confirmed.     Ridg.  Lap.  &  Scho.  602.] 

See  form  of  such  a  petition,  2  Harr.  Chan.  (ed.  1790)  32.     The  peti- 


110  FRAME  AND  END  OF  THE    [ChAP.  L 

the  office  of  the  supplemental  bill  in'nature  of  abill  of 
review,  is  to  supply  the  defect  which  occasioned  the 
decree  upon  the  former  bill  (t)  (1).  It  is  necessary  to 

(0  Standish   v.   Radley,   2  Atk.  177. 

tion,  it  seems,  should  be  presented  previously  to  filing  the  supplemen- 
tal bill. 

Rehearings  rest  in  sound  discretion  of  the  court,  not  of  right.  Ap- 
plication for  rehearing  on  ground  of  newly  discovered  evidence  is 
mainly  govorned  by  some  considerations  as  apply  vi^here  leave  is  asked 
to  file  supplemental  bill  after  publication  of  proofs  and  before  hearing, 
in  order  to  bring  up  newly  discovered  evidence  ;  or  where  leave  is  asked 
after  decree  to  file  bill  of  review,  or  bill  in  the  nature  of  a  bill  of  review, 
on  ground  of  newly  discovered  evidence.  {Daniel  v.  Mitchell,  1  Story's 
R.  200,  198.) 

Rehearings  have  been  exceedingly  rare  in  the  circuit  courts  of  the 
United  States  ;  and  ought  to  be,  unless  some  plain,  obvious,  palpable 
error,  omission  or  mistake  in  something  material  to  the  decree  is  brought 
to  the  notice  of  the  court,  which  had  before  escaped  its  attention. 
The  Supreme  Court  of  the  United  States  habitually  refused  rehearings 
after  it  has  pronounced  its  judgment.  The  English  practice  has 
guards  that  do  not  exist  here,  where  counsel  and  client  are  brought 
into  immediate  and  constant  contact.  But  such  as  is  the  practice  in 
England  it  is  the  source  of  almost  interminable  delays  and  inconve- 
niences. When  a  cause  is  once  fully  argued  and  an  appeal  lies  from 
the  decree,  there  is  ordinarily  no  reason  for  a  rehearing  here  on  the 
original  evidence.  The  application  to  be  maintainable  the  petition 
should  pray  leave  to  file  supplemental  bill,  to  bring  forward  new  evi- 
dence and  for  a  rehearing  of  the  cause  at  the  time  when  the  supple- 
mental bill  should  also  be  ready  for  a  hearing. 

To  bring  forward  new  evidence  unless  it  be  an  exhibit  or  some  doc- 
umentary proof  omitted  by  slip,  to  be  read  or  proved  on  final  hearing, 
must  be  by  supplemental  bill.  The  new  evidence  to  found  such  bill 
should  be  such,  as,  if  unanswered,  would  require  a  reversal  of  the 
decree.  New  oral  testimony  to  corroborate  evidence  on  one  side  or 
contradict  it  on  the  other  on  points  in  issue,  is  insufficient ;  and  if  the 
evidence  was  such  as  the  party  might  by  due  diligence  have  originally 
introduced,  or  where  he  had  full  means  of  knowledge  in  his  reach,  the 
bill  will  not  be  admitted  after  an  interlocutory  decree.     Jenkins  v. 

Eldredge,  3  Story's  R.  304-7,  310,  311,  314,  et  seq.  299. 

(1)  [See  the  form  of  such  a  bill,  Willis,  376.     Such  a  bill  cannot 

be  filed,  where  a  party  could  have  filed  an  ordinary  supplemental  bill, 

but  waits  doing  so  until  after  a  decree.     Pendleton  v.  Fay,  3  Paige's 

C.  R.  204.] 


S.  III.]  SEVERAL  KINDS    OF  BILLS.  110 

obtain  the  leave  of  the  court  to  bring  a  supplemental 
bill  of  this  nature  (ti),  and  the  same  affidavit  is  re- 
quired for  this  purpose  as  is  necessary  to  obtain 
leave  to  bring  a  bill  of  review  on  discovery  of  new 
matter  (x)  (1).  The  bill  in  its  frame  nearly  resembles 

(m)   Order,   17  Oct.  1741,  Ord.  in  adopted  by  tlie   court  in  relation  to 

Cha.  Ed.  Bea.  366  ;  2  Atk.  1.39,  note ;  bills  of  tliis  kind,  see  Ord  v.  Noel,  6 

3Atk.811;  2Ves.  597,  598;  Bridge  Madd.  127;  Bingham  v.  Dawson,  1 

V.  Johnson,  17  Dec.  1737.  Jac.  R.  243;    Wilkinson  v.  Parish, 

{x)  As  to  the    general    principles  3  Paige  R.  653. 

(I)  Where  a  decree  is  made  against  executors,  not  charging  them 
with  what  they  might  have  received,  but  for  their  wilful  default,  but 
afterwards  a  bill  is  filed^  which  seeks  so  to  charge  them,  it  is  a  sup- 
plemental bill  in  the  nature  of  a  bill  of  review,  and  must  not  be 
filed  without  the  leave  of  the  court.  Hudson  v.  Ball,  11  Sim. '456;  1 
Phil.  177. 

And  where  a  vendor  contracts  to  sell  leasehold  premises  for  the  re- 
mainder of  a  term  granted  by  a  certain  lessor,  and  the  specific  per- 
formance of  the  contract  is  decreed,  the  purchaser  may  not,  without 
the  leave  of  the  court,  file  a  supplemental  bill,  slating  the  fact  that  the 
premises  called  by  the  name  by  which  they  are  designated  in  the  con- 
tract partly  consist  of  premises  comprised  in  a  lease  granted  by  another 
lessor,  and  praying  a  declaration  that  tiie  premises  comprised  in  both 
leases  are  comprised  in  the  contract,  and  that  the  contract  may  be  spe- 
cifically performed  accordingly.  For  where  a  supplemental  bill  is 
brought  to  supply  a  defect  in  the  pleadings  and  decree  in  the  original 
cause,  and  the  decree  upon  it  can  only  be  obtained  on  a  rehearing  of 
the  decree  in  the  original  cause;  such  bill  is  a  supplemental  bill  in 
the  nature  of  a  bill  of  review,  which  ought  not  to  be  filed  without  the 
leave  of  the  court.     Davis  v.  Black,  6  Beav.  393. 

Where  a  supplemental  bill  seeks  a  species  of  relief  which  may  be 
inconsistent  with  the  relief  afforded  by  the  decree  in  the  original  suit, 
though  it  be  only  in  one  respect,  and  that  in  re;:ard  to  the  transactions 
of  a  few  days,  the  bill  is  irregular,  if  filed  without  leave  of  the  court ; 
and  the  defendants  are  not  precluded  from  insisting  on  the  irregular- 
ity, by  having  answered  the  bill ;  because,  although  the  defendants 
should  waive  the  objection  arising  from  the  want  of  leave  to  file  the 
bill,  yet  the  court  itself  would  be  concerned  to  prevent  inconsistent 
decrees  from  being  made.  Such  an  irregularity  may,  however,  be 
corrected  by  a  stay  of  the  proceedings,  without  prejudice  to  the  plain- 
tiff's right  to  file  anew  bill,  or  to  apply  for  leave  of  the  court  to  file  a 
bill  of  review. 


ture  of  a  bill  of 
review 


HI  FRAME  AND  END  OF  THE     [CuAP.  I. 

a  bill  of  review,  except  that  instead  of  praying  that 
the  former  decree  maybe  reviewed  and  reversed,  it 
prays  that  the  cause  may  be  heard  with  respect  to 
the  new  matter  made  the  subject  of  the  supple- 
mental bill,  at  the  same  time  that  it  is  re-heard  upon 

112  the  original  bill,  and  that  the  plaintiff  may  have  such 

[92]  relief  as  the  nature  of  the  case  made  by  the  supple- 
mental bill  requires  (y). 

3.  Bills  in  the  na.      g    jf  j^  dccrcc  is  made  ao^ainst  a  person  who  had 

ture  of  a  bill  of  n  ,  r 

no  interest  at  all  in  the  matter  in  dispute,  or  had  not 
such  an  interest  as  was  sufficient  to  render  the  de- 
cree against  him  binding  upon  some  person  claiming 
the  same  or  a  similar  interest  (z),  relief  may  be  ob- 
tained against  error  in  the  decree  by  a  bill  in  the 
nature  of  a  bill  of  review  (a)  (1).  Thus,  if  a  decree 
is  made  against  a  tenant  for  life  only,  a  remainder- 
man in  tail  or  in  fee  cannot  defeat  the  proceedings 
against  the  tenant  for  life,  but  by  a  bill  showing  the 
error  in  the  decree,  the  incompetency  in  the  tenant 
for  life  to  sustain  the  suit,  and  the  accruer  of  his 

(y)  See  17  Ves.  177,  178.  See  (z)  Brown  v.  Vermuden,  1  Ca.  in 
note,  p.  110,  supra.  Cha.  272. 

(a)  See  17  Ves.  178. 

This  point  arose  in  a  case  where  the  plaintiffs  would  have  been  en- 
titled, in  the  original  suit,  to  interest  on  the  amount  due  to  the  estate 
of  a  deceased  partner  whom  they  represented ;  but  by  a  supplemental 
bill  they  sought  for  a  declaration  that  they  were  entitled,  at  their  optimi, 
either  to  participate  in  the  profits  made  by  the  defendant,  the  surviving 
partner  after  the  death  of  the  deceased  partner,  or  to  be  allowed  interest 
upon  the  balance  due  to  the  deceased  partner's  estate.  Toulmin  v. 
Copland,  4  Hare,  41. 

(1)  See  form  of  bill.     [Willis,  378.] 

It  lies  only  after  final  decree,  not  where  the  subject  is  still  before  the 
court  in  Jieri  upon  master's  report  in  pursuance,  and  of  an  interlocutory- 
decree.  (Jenkins  v.  Eldridge,  3  Story's  R.  302,  i.99.  See  p.  106, 
note,  supra.) 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  112 

own  interest,  and  thereupon  praying  that  the  pro- 
ceedings in  the  original  cause  maybe  reviewed, and 
for  that  purpose  that  the  other  party  may  appear 
to  and  answer  this  new  bill,  and  the  rights  of  the 
parties  may  be  properly  ascertained  (1).  A  bill  of 
this  nature,  as  it  does  not  seek  to  alter  a  decree 
made  against  the  plaintiff  himself,  or  against  any 
person  under  whom  he  claims,  may  be  filed  without 
the  leave  of  the  court  (b)  (2). 

4.  If  a  decree  has  been  obtained  by  fraud  it  may  ^  Biiis  to  im. 

J  J    peach  decreea 

be  impeached  by  original  bill  (c)  without  the  leave  *'"'*'^*'"^:^-.rt 
of  the  court  (d)\  the  fraud  used  in  obtaining  the  de-       mg-j 
cree  being  the  principal  point  in  issue,  and  neces- 
sary to  be  established  by  proof  before  the  propriety 
of  the  decree  can  be  investigated.  (3).     And  where 

(b)  Osborne  v.  Usher,  6  Bro.  P.C.  4  Tb.  97.]  In  3  P.  Wms.  1  Jl,  it  is 
20,  Tom!.  Ed.  said  that  a  decree  in  such  case  may 

(c)  1  p.  Williams,  7.3G;  Loyd  v.  be  set  aside  on  petition  ;  but  this  was 
Mansell,  2  P.  Wms.  7.3  ;  3  P.  Wma.  prob.ibly  meant  to  extend  only  to  the 
111  ;  Wichalse  v.  Short,3  Bro  P.  C.  case  of  a  decree  not  signed  and  eri- 
558,Toml.  Ed. ;  and  see  Kcmiecli/  v.  rolled,  and  wliere  the  fact  of  fraud 
Daly,  1  Sch.  &  Lefr.  355;  and  could  not  be  controverled.  See  Mus- 
Giffurd  V.  Hort,  1  Sch.  &.  Lefr.  3S6.  sel  v.  Morgan,  3  Bro.  C.  C.  74 ;  2 
[Davoue  v.  Fanning,  4  J.  C.  R.  199  ;  Sch.  &  Lefr.  574. 

Murray  v.  Murray,  5  lb.  60;  Wil-         (d)  3  Alk.  811  ;  1  Ves.  120;  Ca. 
Hams  V.  Fowler,  2  J.  J.  Marshall's     Temp.  Talbot,  201. 
R.  405  ;  Edmonson  v.  Mosly's  heirs, 

(1)  [And  it  would  seem,  where  a  bill  by  a  vendor  of  land,  seeking  a 
specific  performance  of  the  contract,  is  dismissed  on  account  of  a  de- 
fect in  the  title,  and  he  can  afterwards  make  title,  that  he  may  come 
in  again  by  an  original  bill  in  the  nature  of  a  bill  of  review.  Hepburn 
V.  Dunlop,  1  Wheat.  179,  195.] 

(2)  In  Quick  V.  Lilly,  ^  Gnen'sC.  R.  Ncw-Jereey,  257-8,  255,  it  was 
held  on  a  petition  for  leave  to  file  such  bill,  that  to  justify  it,  on  gronnd 
of  newly  discovered  matter,  the  evidence  discovered  must  be  new,  and 
material.  The  new  matter  must  be  such  as,  if  unanswered  in  point 
of  fact,  would  clearly  entitle  party  to  a  decree,  or  raise  a  case  of  so 
much  nicety  and  difficulty  as  to  be  a  fit  subject  of  judgment  in  a  cause. 

(3)  See  form  of  bill,  [Willis,  381.] 

The  bill  to  impeach  or  sut  aside  judgment  or  decree  for  fraud,  must 


113  FRAME  AND  END  OF  THE  [ChAP.  I. 

a  decree  has  been  so  obtained  the  court  will  restore 
the  parties  to  their  former  situation,  whatever 
their  rights  may  be  {e).  Beside  cases  of  direct 
fraud  in  obtaining  a  decree,  it  seems  to  have  been 
considered,  that  where  a  decree  has  been  made 
against  a  trustee,  the  cestui  que  trust  not  being  be- 
fore the  court,  and  the  trust  not  discovered,  or 
against  a  person  who  has  made  some  conveyance 
or  encumbrance  not  discovered,  or  where  a  decree 
has  been  made  in  favor  of  or  against  an  heir, 
when  the  ancestor  has  in  fact  disposed  by  will  of 
the  subject-matter  of  the  suit,  the  concealment  of 
the  trust,  or  subsequent  conveyance,  or  encum- 
brance, or  will,  in  these  several  cases,  ought  to  be 
treated  as  a  fraud  (f).     It  has  been  also  said  that 

114  where  an  improper  deCree  has  been  made  against 
an  infant,  without  actual  fraud,  it  ought  to  be  irn- 

[94]      peached  by  original  bill  (g)(1).     When  a  decree 

(e)  Birne  v.  Hartpole,  5  Bro.  P.  C.  other  it  will  be  vacated.     Stevens  v. 

197,  Toml.  Ed. ;  and  see  Powell  v.  Guppy,  1  Turn.  R.  178. 
Martin,  1  Jac.  &  W.  292.     And  it         (/)  See    Style  v.  Martin,  1  Ca. 

may  be  remarked,  that   where    the  Cha.  150;  Earle  of  Carlisle  v.  Goble, 

enrolment  of  the  decree  by  the  one  3  Cha.  Rep.  94. 
party  is  a  fraud  or  surprise  upon  the        (g)  I  P.  Wras.  737  ;  2  Ves.  232. 

set  forth  precisely  the  particular  circumstances  of  fraud.  (Pendleton 
V.  Galloivay  et  al.  9  Ohio  R.  178.) 

In  a  suit  in  Ohio,  on  a  judgment  in  Virginia,  and  upon  plea  that  it  was 
obtained  by  fraud,  it  was  held  that  it  could  only  be  directly  impeached 
in  chancery.  The  general  doctrine  of  the  books  is  that  fraud  avoids 
all  judicial  acts.  But  even  as  to  foreign  judgments  the  inclination 
now  is  to  hold  them  conclusive.  {Martin  v.  Nicolls,  3  Simon  R.  458.) 
A  fortiori  a  judgment  of  a  sister  state  which  has  all  the  force  and  va- 
lidity of  a  domestic  judgment  cannot  be  impeached  collaterally.  (An- 
derson.v.  Anderson,  8  Ohio  R.  108,  et  seq.) 

(1)  A  fortiori  where  there  was  fraud;  a  decree  against  minor  de- 
fendants, rendered  upon  the  answer  of  their  guardian  ad  litem,  may 
be  thus  impeached  and  reversed.  Massie  v.  Matthew's  executors  and 
Wallace,  12  Ohio  R,  351. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  114 

has  been  made  by  consent  and  the  consent  has 
been  fraudulently  obtained,  the  party  grieved  can 
only  be  relieved  by  original  bill  (h). 

A  bill  to  set  aside  a  decree  for  fraud  must  state 
the  decree,  and  the  proceedings  which  led  to  it,  with 
the  circumstances  of  fraud  on  which  it  is  impeached 
The  prayer  must  necessarily  be  varied  according  to 
the  nature  of  the  fraud  used,  and  the  extent  of  its 
operation  in  obtaining  an  improper  decision  of  the 
court. 

5.  The  operation  of  a  decree  signed  and  enrolled  pcnd^or^avord" 
has  been  suspended  on  special  circumstances,  or  '^''*''"^'''- 
avoided  by  matter  subsequent  to  the  decree,  upon  a 
new  bill  for  that  purpose.  Thus  during  the  troubles 
after  the  death  of  Charles  the  First,  upon  a  decree 
for  a  foreclosure  in  case  of  non-payment  of  principal, 
interest  and  costs  due  on  a  mortgage,  the  mort- 
gagor at  the  time  of  payment  being  forced  to  leave 
the  kingdom  to  avoid  the  consequences  of  his  en- 
gagements with  the  royal  party,  and  having  re- 
quested the  mortgagee  to  sell  the  estate  to  the  best 
advantage  and  pay  himself,  which  the  mortgagee 
appeared  to  have  acquiesced  in  ;  the  court,  upon  a 
new  bill,  enlarged  the  time  for  performance  of  the 
decree,  upon  the  ground  of  the  inevitable  necessity 
which  prevented  the  mortgagor  from  complying 
with  the  strict  terms  of  it,  and  also  made  a  new 
decree  on  the  ground  of  the  matter  subsequent  to 
the  former  decree  (i). 

(h)  Ambl.  229.     [And  see  Monell  Whorewood,    1    Ca.   in    Cha.  250 ; 

V.  Lawrence,  on  appea],  12  Johns.  R.  Wakelin  v.  Walthal,  2  Ca.  in  Cha.  8. 

.521.]  The  embarrassments  occasioned  by 

(»)  Cocker  v.  Bevis,  1  Ca.  in  Cha.  the  civil  war  in  the  reign  of  Charles 

61.     See  also   Vcnahles  v.    Foyle,  1  I.,  and  the  stale  of  affairs  after  his 

Ca.  in   Cha.  3 ;  and    Whorewood  v.  deatii,    before     the     restoration    of 


115  FRAME  AND  END  OF  THE     [ChAP.  L 

[95]  6.  Sometimes,  from  the  neglect  of  parties,  or 

;iii8  t 
reea 
ecution. 


6.  Bills  to  carry  ,  .      ■.  .  .,   . 

decrees  into  ex  somc  otiior  cdiise,  it  Decomes  impossible  to  carry  a 


decree  into  execution  without  the  further  decree  of 
the  court  (k).  This  happens,  generally,  in  cases 
where  the  parties  having  neglected  to  proceed  upon 
the  decree,  their  rights  under  it  become  so  em- 
barrassed by  a  variety  of  subsequent  events,  that  it 
is  necessary  to  have  the  decree  of  the  court  to  settle 
and  ascertain  them.  Sometimes  such  a  bill  is  ex- 
hibited by  a  person  who  was  not  a  party,  nor  claims 
under  any  party,  to  the  original  decree,  but  claims 
in  a  similar  interest,  or  is  unable  to  obtain  the  de- 
termination of  his  own  rights  till  the  decree  is  car- 
ried into  execution  (I).  Or  it  may  be  brought  by  or 
against  a  person  claiming  r.s  assignee  of  a  party  to 
the  decree  (m).  The  court  in  these  cases  m  gene- 
ral only  enforces,  and  does  not  vary,  the  decree  ; 
but  on  circumstances  it  has  sometimes  considered 
116  the  directions,  and  varied  them  in  case  of  a  mistake 

[96]      (n)  (1);  and  it  has  even  on  circumstances  refused 

Charles  II.  occasioned  many  extra-  (k)  2  Chan.   Rep.   128  ;    2  Vern. 

ordinary  applications  to  the  court  of  409. 

chancery  for  rehef,  and  perhaps  in-  (Z)  See  peculiar  case  of  Rylands 

duced  the  court  to  go  far  in  extend-  v.  Latouche,  2  Bligh,  P.  C.  566. 

ing  rehef ;  but  there  were  many  cases  (m)   Organ  v.  Gardiner,   1   Ca.  in 

of  extreme  hardship  in  which  it  was  Cha.  231  ;  Lord  Carteret  v.  Paschal, 

deemed  impossible,  consistently  with  3  P.  Wms.  197;  S.   C.  on  appeal,  2 

established  principles,  to  give  relief;  Bro.   P.  C.  10,  Toml.  Ed.;  Buiks  v^ 

and  all  cases  determined  soou   after  Sinks,  rep.  2  Bligh,  P.  C.  593,  note, 

the   restoration,  upon  circumstances  (n)   See  for  example  Hamilton  v. 

connected   with   the  prior    disturbed  Houghton,   2  Bligh,  P.  C.  164;  and 

state  of  the  country,  ought  to  be  con-  see  Sel.  Ca.  in  Cha.  13. 
sidered  with  much  caution. 


(1)  The  general  rule  is,  that  the  court  will  not,  unless  under  special 
circumstances,  examine  the  justice  of  the  decision  or  the  law  of  the 
decree  ;  but,  if  the  case  be  proper  for  their  interference,  will  specifically 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  116 

to  enforce  the  decree  (o);  though  in  other  cases  the 
court,  and  the  House  of  Lords,  upon  an  appeal, 
seem  to  have  considered  that  the  law  of  the  decree 
ought  not  to  be  examined  on  a  bill  to  carry  it  into 
execution  (p).  Such  a  bill  may  also  be  brought  to 
carry  into  execution  the  judgment  of  an  inferior 
court  of  equity  (q),  if  the  jurisdiction  of  that  court 
is  not  equal  to  the  purpose ;  as  in  the  case  of  a 
decree  in  Wales  which  the  defendant  avoided  by 
flying  into  England  (r)  :  but  in  this  case  the  court 
thought  itself  entitled  to  examine  the  justice  of  the  myi  ny 
decision,  though  affirmed  in  the  House  of  Lords  (s). 
A  bill  for  this  purpose  is,  generally,  partly  an 
original  bill,  and  partly  a  bill  in  the  nature  of  an 

(o)  Att.  Gen.  v.  Day,  1  Ves.  218  ;  made,  the  bill  of  foreclosure  insisting 

1  Ves.  245 ;  Johnson  v.  Northey,  on  an  encumbrance  not  noticed  in 
Prec.  in  Ch.  134;  -S.  C.2  Vern.  407.  the  former  cause,  the  latter  was  on 
In  the  last  case  the  lord  keeper  (1700)  hearing  ordered  to  stand  over,  that 
seemed  to  think  that  a  bill  by  credit-  the  question  might  be  brought  on  by 
ors  to  carry  into  execution  a  decree  rehearing  of  the  former  cause,  or  by 
in  favor  of  their  debtor  had  opened  bill  of  review. 

that  decree.     In  the  case  of  Sir  John  (p)  2  Ves.  232  ;  Smythe  v.  Clay,  1 

Worden  v.  Gerard,  in  Ch.  1718,  the  Bro.  P.  C.  453,  Toml.  Ed. ;  see   also 

interests  of   an    infant  party  being  Minshull  v.  Lord  Mohun,  2    Vern. 

affected  by  the  decree,  the  court  re-  672,  and  S.  C.  on  appeal,  6  Bro.  P.  C. 

fused  to  carry  it  into  execution  upon  32,  Toml.  Ed. 

a  bill  for  that  purpose,  and  made  a  (q)  1  Roll.  Ab.  373. 

decree  according  to  the  rights  of  the         (r)  Morgan  v.  ,  1  Atk.  408. 

parties.     See  Lechmere  v.  Brasier,  The   case  referred  to  of  a  decree   in 

2  Jac.  &  W.  287.  But  in  Shephard  Wales  seems  to  have  been  a  case  of 
V.  Titley,  2  Atk.   348,  on  a  bill  to  Halford  v.  Morgan. 

foreclose  a  mortgage,  after  a  bill  to         (s)  See  Dougleis,  6. 
redeem,  on  which  a  decree  had  been 

execute  the  decree.  There  are  cases  where  the  rule  has  been  relaxed 
and  the  decree  varied,  if,  upon  examining  the  proofs  taken  in  the 
cause  wherein  the  decree  was  made,  or  tlie  directions  given,  a  mistake 
has  been  discovered.  Este  el  al.  v.  Strong  el  al.,  2  Ohio  R,  419,  418, 
condeuBed  from  2  Hammond,  401. 

12 


117  FRAME  AND  END  OF  THE    [CnAP.  I. 

original  bill,  though  not  strictly  original  (t)  ;  and 
sometimes  it  is  likewise  a  bill  of  revivor,  or  a  supple- 
mental bill,  or  both.  The  frame  of  the  bill  is  varied 
accordingly. 

7.  Original  bills      7.  It  has  been  already  mentioned  (u),  that  when 

in  the  nature  ol  ,      .  .  .  , 

bills  of  revivor.  ^^9  mtcrcst  of  a  party  dying  is  transmitted  to  another 
in  such  a  manner  that  the  transmission  may  be  liti- 
gated in  this  court,  as  in  the  case  of  a  devise,  the 
suit  cannot  be  revived  by  or  against  the  person  to 
whom  the  interest  is  so  transmitted;  but  that  such 
person,if  he  succeeds  to  the  interest  of  a  plaintiff,  is 
entitled  to  the  benefit  of  the  former  suit;  and  if  he 
succeeds  to  the  interest  of  a  defendant,  the  plaintiff 
is  entitled  to  the  benefit  of  the  former  suit  against 
him ;  and  that  this  benefit  is  to  be  obtained  by  an  ori- 
ginal bill  in  nature  of  a  bill  of  revivor  (1).  A  bill  for 
this  purpose  must  state  the  original  bill,  the  proceed- 
in  gs  upon  it,  the  abatement,  and  the  manner  in  which 
the  interest  of  the  party  dead  has  been  transmitted  ; 
and  it  must  charge  the  validity  of  the  transmission, 
and  state  the  rights  which  have  accrued  by  it.  The 
bill  is  said  to  be  original  merely  for  want  of  that 
privity  of  title  between  the  party  to  the  former  and 
the  party  to  the  latter  bill,  though  claiming  the 
[98]      same  interest,  as  would  have  permitted  the  con- 

118  tinuance  of  the  suit  by  a  bill  of  revivor.  Therefore, 
when  the  validity  of  the  alle£:ed  transmission  of  in- 
terest  is  established,  the  party  to  the  new  bill  shall 

(0  la  case  of  Pott  v.  Gallini,  a     extended  upon  an   original    bill.     1 
decree  in  a  former  suit  was,  iii  effect,     Sim.  &  Stu.  206. 

(u)  See  above,  p.  86. 

(1)  [See  form  of  such  bill,  W^illis,  394  ;]  and  the  doctrine  and  prac- 
tice in  New-York,  on  abatement  and  revivor,  pp.69  and  note,  83, note. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  118 

be  equally  bound  by  or  have  advantage  of  the  pro- 
ceedings on  the  original  bill,  as  it"  there  had  been 
such  a  privity  between  him  and  the  party  to  the 
original  bill  claiming  the  same  interest  (x)  ;  and  the 
suit  is  considered  as  pending  from  the  filing  of  the 
original  bill,  so  as  to  save  the  statute  of  limitations, 
to  have  the  advantage  of  compelling  the  defendant 
to  answer  before  an  answer  can  be  compelled  to  a 
cross-bill,  and  every  other  advantage  which  would 
have  attended  the  institution  of  the  suit  by  the  ori- 
ginal bill  if  it  could  have  been  continued  by  bill  of 
revivor  merely  (y) . 

8.  It  has  been  also  mentioned  (z),  that  if  the  in-  biifs'''in'Xe°na! 
terest  of  a  plaintiff  or  defendant,  suing  or  defen-  ^113.°'°"'^""^ 
ding  in  his  own  right,  wholly  determines,  and  the 
same  property  becomes  vested  in  another  person 
not  claiming  under  him,  the  suit  cannot  be  con- 
tinued by  a  bill  of  revivor,  and  its  defects  cannot  be 
supplied  by  a  supplemental  bill ;  but  that  by  an  ori- 
ginal bill  in  the  nature  of  a  supplemental  bill  the 
benefit  of  the  former  proceedings  maybe  obtained 
(a).  A  bill  for  this  purpose  must  state  the  original 
bill,  the  proceedh)gs  upon  it,  the  event  which  has 
determined  the  interest  of  the  party  by  Or  against 
whom  the  former  bill  was  exhibited,  and  the  man-  119 

ner  in  which  the  property  has  vested  in  the  person 
become  entitled.  It  must  then  show  the  ground 
upon  which  the  court  ought  to  grant  the  benefit  of 

(x)  Clare  v.  Wordell,  2  Vern.  548 ;  Stu.  495. 
1  Eq.  Ca.  Ab.  83  ;  Min>iliull  v.  Lord         (y)   Child  v.  Frederick,  1  P.  Wms. 

Mohun,  2  Vern.  672;  Mordaunt  v.  266. 
Minshull,  6  Bro.  P.  C.  32,  Toml.  Ed.;         {z)  See  above  p.  86. 
Johnson  v.  Northey,  Prec.  in  Cha.         (a)  See   Hnulditch  v.  Marquis  of 

134;  5.  C.  2  Vern.  407;  1   Sim.  &  Donegall,  1  Sim.  &,  Stu.  491. 


119  FRAME  AND  END  OF  THE    [CnAP.  L 

the  former  suit  to  or  against  the  person  so  become 
entitled;  and  pray  the  decree  of  the  court  adapted 
to  the  case  of  the  plaintiff  in  the  new  bill  (b). 
This  bill,  though  partaking  of  the  nature  of  a  sup- 
plemental bill,  is  not  an  addition  to  the  original  bill, 
but  another  original  bill,  which  in  its  consequences 
may  draw  to  itself  the  advantage  of  the  proceedings 
on  the  former  bill  (c)  (1). 
Sn?*^""""'  IV'  Informations  (d)  in  every  respect  follow  the 

120  nature  of  bills,  except  in  their  style.  When  they 
concern  only  the  rights  of  the  crown,  or  of  those 
whose  rights  the  crown  takes  under  its  particular 
protection,  they  are  exhibited  in  the  name  of  the 
king's  attorney  or  solicitor-general  as  the  informant; 
and,  as  before  observed,  in  the  latter  case  always, 

(b)  6  Bro.  P.  C.  24,  Toml.  Ed.  88.     [See  form  of  such  a  bill,  Willis^ 

(c)  See  9  Ves.  55,  above,  pp.  87,     396.] 

{d)  See  above,  pp.  21-24. 

(1)  Where  a  defendant  dies,  after  putting  in  his  answer,  and  devi- 
sing his  estate,  which  the  bill  seeks  to  affect,  to  persons  who  are  not 
parties  to  the  bill,  the  plaintiff  may,  in  another  bill  against  such  defen- 
dant, his  devisees  and  executors,  and  a  surviving  party  to  the  first  bill, 
state  the  allegations  contained  in  the  first  bill,  and  may  introduce  vari- 
ous passages  of  the  answer,  by  way  of  pretence  or  otherwise,  and 
meet  such  passages  by  charges,  without  rendering  the  second  bill  im- 
pertinent. For,  as  to  the  repetition  of  the  statements  contained  in  the 
first  bill,  that  is  necessary  in  order  to  enable  the  fresh  parties  to  under- 
stand the  nature  of  the  case  made  by  the  first  bill,  of  the  contents  of 
■which  it  must  be  assumed  that  they  are  ignorant.  And  as  to  tiie  in- 
sertion of  passages  from  the  answer  and  charges  to  meet  them,  the 
plaintiff  is  entitled  to  the  same  advantage  against  the  devisees  and 
executors  as  if  they  had  been  parties  to  the  original  bill,  in  which  case 
he  might  have  amended  the  original  bill  by  stating  the  defendant's 
answer  by  way  of  pretence,  and  inserting  charges  to  meet  it.  The 
second  bill  above  mentioned  may  be  termed  an  original  bill  in  the 
nature  of  a  supplemental  bill,  it  being  original  as  to  the  fresh  jiarties, 
but  supplemental  as  regards  the  former  bill.  Woods  v.  Woods,  10 
Sim.  193. 


S.  III.]  SEVERAL  KINDS  OF  BILLS.  120 

and  in  the  former  sometimes,  a  relator  is  named, 
who  in  reahty  sustains  and  directs  the  suit.  It  may 
happen  that  this  person  has  an  interest  in  the  matter 
in  dispute,  and  sustains  the  character  of  plaintiff  as 
well  as  of  relator ;  and  in  this  case  the  pleading  is 
styled  an  information  and  bill.  An  information 
concerning  the  rights  of  the  queen  is  exhibited  also 
in  the  name  of  her  attorney-general.  The  proceed-  [100] 
ings  upon  an  information  can  only  abate  by  the 
death  or  determination  of  interest,  of  the  defendant. 

If  there  are  several  relators,  the  death  of  any  of 
them,  while  there  survives  one,  will  not  in  any  de- 
gree affect  the  suit;  but  if  all  the  relators  die,  or  if 
there  is  but  one,  and  that  relator  dies,  the  court 
will  not  permit  any  further  proceeding  till  an  order 
has  been  obtained  for  liberty  to  insert  the  name  of 
a  new  relator,  and  such  name  is  inserted  accor- 
dingly (e),  otherwise  there  would  be  no  person  liable 
to  pay  the  costs  (/)  of  the  suit  in  case  the  infor- 
mation should  be  deemed  improper,  or  for  any  other 
reason  should  be  dismissed. 

The  difference  in  form  between  an  information  i^X 

and  a  bill  consists  merely  in  offering  the  subject 
matter  as  the  information  of  the  officer  in  whose 
name  it  is  exhibited,  at  the  relation  of  the  person 
who  suggests  the  suit  in  those  cases  where  a  relator 
is  named,  and  in  stating  the  acts  of  the  defendant 
to  be  injurious  to  the  crown,  or  to  those  whose  rights 
the  crown  thus  endeavors  to  protect.  When  the 
pleading  is  at  the  same  time  an  information  and 

(ej  Att.  Gen.  v.  Powell,  Dick.  355.  Sim.  &.  Stu.  40  ;  and  see  Anon.  Sel, 

And   the   application  must  be  made  Ca.  in  Clia.  G9  ;  Att.  Gen.  v.  Fellows, 

by  the  attorney-general,  or  with  liia  1  Jac.  &  W.  254. 

consent.     Att.  Gen.  v.  Plumptree,  5  (/)   1  Ves.  72  ;  Att.  Gen.  v.  Mid- 

Madd.  452  ;  Wellbeloved  v.  Jones,  1  dUton,  2  \^.  327. 


121 


FRAME    AND    END    OF    BILLS.        [ChAP.    L. 


bill  it  is  a  compound  of  the  forms  used  for  each 
when  separately  exhibited  (g). 
122  [101]  III  this  investigatioir  of  the  frame  and  end  of  the 
several  kinds  of  bills  the  matters  requisite  to  the 
sufficiency  of  each  kind  have  been  generally  con- 
sidered; but  they  will  in  some  degree  be  more  par- 
ticularly noticed  in  the  following  chapter,  in  treating 
of  the  defence  which  may  be  made  to  the  several 
kinds  of  bills,  and  consequently  of  the  advantages 
which  may  be  taken  of  their  hisufficiency  both  in 
form  and  substance. 


(g)  It  may  here  be  observed,  with 
resppct  to  informations  on  behalf  of 
public  charities,  that  the  practice  of 
this  court  has  been  to  control  the 
governors  or  other  directors  of  them, 
in  those  cases  only  in  which  tliey  have 
had  the  disposition  of  its  revenues ; 
and  that  this  limited  authority  has 
been  exerted  under  its  general  juris- 
diction in  relation  to  trusts  :  although 
it  has  gone  beyond  the  ordinary  cases 
on  that  subject  by  regulating  the  ex- 
ercise of  their  discretion.  2  Ves.  89 
2  Ves.  328  ;  Att.  Gen.  v.  Foundling 
Hospital,  2  Ves.  Jr.  42  ;  S.  C.  4  Bro. 
C.  C.  165 ;  Att.  Gen.  v.  Dixie,  13 
Ves.  519  ;  Att.  Gen.  v.  Earl  of  Cla- 
rendon, 17  Ves.  491 ;  3  Ves.  &  Bea. 
154;  Att.  Gen.  v.  Brown,  1  Swanst. 
2G5  ;  Att.  Gen.  v.  Mayor  of  Bristol,  3 
Madd.  319  ;  S.C.2  Jac.  &  W.  294 ; 
Foley  V.  Wontner,  2  Jac.  &  W.  245  ; 
Att.  Gen.  v.  Buller,  1  Jac.  R.  407  ; 
Att.  Gen.  v.  Heelis,  2  Sim.  &  Stu. 
67  ;  Att.  Gen.  v.  Mayor  of  Stamford, 
reported  2  Swanst.  591 ;  Att.  Gen.  v. 


Vivian,  I  Russ.  R.  226.  It  has  al- 
ready been  observed  in  the  text,  p. 
19,  that  this  court  is  empowered  by 
the  52  Geo.  III.  c.  101,  to  interfere 
in  such  cases  as  relate  only  to  the 
plain  breach  of  trusts  created  for 
charitable  purposes,  on  what  is  tech- 
nically termed  a  petition  in  a  sum- 
mary, way.  As  to  which,  see  also  £x 
parte  Berkkampstead  School,  2  Ves. 
&  Bea.  134  ;  Ex  parte  Rees,  3  Ves* 
«&  Bea.  10  ;  Ex  parte  Brown,  Coop. 
R.  295  ;  Ex  parte  Skinner,  2  Meriv. 
453  ;  S.  C.l  Wiis.  R.  14 ;  Ex  parte 
Greenhouse,  1  Swanst.  60;  iS.  C.  1 
Wils.  R.  18  ;  In  re  Slewings  Charity, 
3  Meriv.  707 ;  Att.  Gen.  v.  Green, 
1  Jac.  &  W.  303;  In  re  Bedford 
Charity,  2  Swanst.  470  ;  in  the  mat- 
ter of  St.  Wenn's  Charity,  2  Sim. 
&  Stu..  66^  and  see  2  Swanst.  518j 
525.  And  it  may  here  be  added, 
that  it  is  also  authorized  to  decide  in 
certain  other  cases  relating  to  the 
property  of  charities,  upon  a  petition,  . 
by  the  59  Geo.  III.  c.  91. 


123 


CHAPTER  THE  SECOND. 

OF  THE  DEFENCE  TO  BILLS. 


[102] 


Section  I. 
Bij  whom  a  Suit  may  he  defended. 

In  treating  of  the  defence  which  may  be  made  to 
a  bill  it  will  be  proper  to  consider,  I.  By  whom 
a  suit  may  be  defended.  II.  The  nature  of  the  va- 
rious modes  of  defence  ;  under  which  head  will  be 
considered,  1,  demurrers  ;  2,  pleas  ;  3,  answers  and 
disclaimers,  or  any  two  or  more  of  them  jointly, 
each  referring  to  a  separate  and  distinct  part  of  the 
bill. 

When   the   interest  of   the  crown,  or  of  those  The  sovereign 

'  by  the  nttorney 

whose  rights  are  under  its  particular  protection,  is  °j:j°'""*°'-s«'»- 
cmicerned  in  the  defence  of  a  suit,  the  king's  at- 
torney-general, or  during  the  vacancy  of  that  office 
the  solicitor-general,  becomes  a  necessary  party  to 
support  that  interest  (a)  ;  but  it  has  been  already 
observed,  that  a  suit  in  the  court  of  chancery  is  not 
the  proper  remedy  where  the  crown  is  in  possession, 
or  any  title  vested  in  it  is  sought  to  be  divested,  or 
affected  (b),  or  its  rights  are  the  immediate  and 
sole  object  of  the  suit.  The  queen's  attorney  or 
solicitor  seems  to  be  the  party  necessary  to  defend  flOS"! 
her  rights  (c). 

(a)  Balch  V.  Waxtall,  1   P.  Wms.         (c)  See  2  Roll.   Ab.  213.     But  a 

445  ;  2  Sch.  &  Lefr.  617.  queen  dowager  has  been   sued  as  & 

(6)  See  above,  p.  33.  common   person.      9    Hen.    VI.  53. 


124  BY  WHOM  A  WRIT  [Chap.  II. 


Tliose  who  are 
able  to  defend  a 
•uit  aloae. 


Infanta 


All  other  bodies  politic  and  corporate  (1),  and 
persons  who  do  not  partake  of  the  prerogative  of 
the  crown,  and  have  no  claim  to  its  particular  pro- 
tection, defend  a  suit  either  by  themselves,  or  un- 
der the  protection  of  or  iointlv  with  others  (1). 

Those  who  arc  ^  '  /.  ^   n 

■nabie.  Jiodics  politic  and  corporate,  and  persons  or  luU 

age,  not  being  married  women,  or  idiots  or  lunatics, 
defend  a  suit  by  themselves  ;  but  infants,  idiots 
and  lunatics,  are  incapable  by  themselves  of  de- 
fending as  they  are  of  instituting  a  suit ;  and  mar- 
ried women  can  only  defend  jointly  with  their  hus- 
bands, except  under  particular  circumstances,  un- 
less a  special  order  is  obtained  to  authorize  or 
compel  their  defending  separately. 

Infants  institute  a  suit  by  their  next  friend  ;  but 

to  defend  a  suit  the  court  appoints  them  guardians, 

who  are  usually  their  nearest  relations,  not  con- 

and  peraoBg  in  a  cemcd  iu  poiut  of  iutcrcst  iu  the  matter  in  question(^ 

hood!  '^^^ '     (2).  If  a  person  is  by  age  or  infirmities,  reduced  to  a 

Writ  of  annuity  against  Joan,  queen     51.      On  the  subject  of   appointing 

dowager  of  Henry  IV.  guardians  ad  litem  for  infant  defend- 

(d)  Offley  V.  Jenney,  3  Ch.  Rep.     ants,  see  Brassington  v.  Brassing- 


(1)  See  p.  10,  note:  It  there  appears  that  where  an  officer  of  a  cor- 
poration is  made  defendant  for  the  purpose  of  discovery  merely,  no 
relief  should  be  prayed  against  him  ;  none  general  nor  special ;  and  the 
prayer  of  the  bill  shjjuld  be  so  framed  that  it  will  distinctly  appear  that 
all  the  relief  sought  is  intended  to  be  confined  to  the  other  defendants 
and  that  none  will  be  asked  against  such  officer  at  the  hearing,  even 
as  to  costs.  If  there  is  a  general  or  special  prayer  for  relief  which  is 
applicable  to  the  officer  of  the  corporation  as  well  as  to  other  defen- 
dants, he  is  entitled  to  put  in  an  answer  containing  a  full  defence ; 
otherwise  he  might  be  surprised  at  the  hearing  by  an  application  for 
costs  or  for  some  other  relief  against  himself  or  his  property  upon 
grounds  which  he  might  have  fully  obviated  by  his  answer.  Mc  Iniyre 
V.  Trustees  of  Union  College  and  E.  Nott,  6  Paige's  R.  242-3,  239. 

(2)  [3  Bibb,  625:  BedelVs  heirs  v.  Lewis's  heirs,  4  J.  J.  Marshall's 
R.  567  ;  2  Revised  Statutes,  N.  Y.  186,  J 122,  123,  124  ;  lb.  317,  J  4  ; 


S.  I.]  MAY    BE    DEFENDED.  124 

second    infancy,  he  may   also    defend    by  guar- 
dian (e). 

Idiots  and  lunatics  defend  by  their  committees  (/)  Jfj°*'  ""*  '"**• 
who  are  by  order  of  the  court  appointed  guardians     [104] 

ton,  3  Anstr.  369  ;  Eyles  v.  Le  Gros,  (e)  Leving  v.   Caverly,   Prec.  in 

9  Ves.  12;  Jong-s»na  V.  PAe/,  9  Ves.  Chan.  229  ;    1    Eq.    Ca.    Ab.    281; 

357;    Williams  v.   Wi/7m,    10    Vea.  Wilson  v  Grace,  14  Ves.  172;  and 

159;  //(//v.  Smf<A,l  Madd.  R.  290;  see    Att.    Gen.   v.    Waddington,    1 

Lushington  v.  Seicell,  6  Madd.  28,  Madd.  R.  321. 

iedvide  Tappen  v.  Norman,  11  Ves.  (/)   1  Vern.  106;  Lyon  v.  Mercer, 

563.  1  Sim.  &  Stu.  356. 


Rules  N.  Y.  Chancery,  143,  145,  146,  147,  148,  149;  Knickerhacker 
V.  De  Freest,  2  Paige's  C.  R.  304.  As  to  partition  cases,  see  2  R.  S. 
329,  5  80,  81  ;  Larkin  v.  Mann,  2  Paige's  C.  R.  27;  Wilkinson  v. 
PamTi,  3  lb.  663. 

It  is  error  to  enter  a  decree  against  infant  defendants,  without  as- 
signing them  a  guardian  ad  litem.  Curtis^s  heirs  v.  Ellis,  3  A.  K. 
Marshall's  R.  77;  Iron's  executors  v.  Crist,  lb.  143;  Jones  v.  Lacey, 
3  J.  J.  Marshall,  644 ;  Roberts  v.  Stanton,  2  Munf  129.  And  although 
the  infancy  does  not  appear  in  the  original  proceedings,  yet  if  it  be 
alleged  in  a  petition  for  a  rehearing  (the  decree  being  interlocutory) 
a  guardian  ad  litem  must  be  appointed.     Roberts  v.  Stanton,  supra. 

Jt  is  presumed  that,  if  an  infant  defendant  were  to  appear  and  defend 
by  solicitor,  a  complainant  might  compel  an  appearance  and  defence 
by  guardian.  This  has  been  done  at  common  law.  ■  Hindmarsh  v. 
Chandler,  7  Taunt.  488.  Infants  cannot  be  made  parties  to  a  bill  for 
the  sake  of  discovery  merely,  as  they  do  not  answer  on  their  oaths. 
Leggetl  V.  Sellon,  3  Paige's  C.  R.  84.  No  decree  or  order  of  revival 
can  be  made  against  an  infant,  by  default,  under  the  provisions  of  the 
New-York  Revised  Statutes.  But  if  the  infant  neglects  to  appear 
and  procure  the  appointment  of  a  guardian,  the  same  steps  for  the 
appointment  of  a  guardian  ad  litem  must  be  taken  as  in  other  cases 
where  the  infant  neglects  to  appear.  Wilkinson  v.  Parish,  3  Paige's 
C.  R.  653.  In  a  controversy  between  the  superseded  and  substituted 
guardian  as  to  the  effects  of  the  ward,  such  ward  must  be  a  party. 
Campbell  v.  Williams,  3  Monroe's  R.  125. 

It  has  never  been  the  course  and  practice  of  the  court  to  appoint  a 
guardian  to  an  infant  feme  covert.  Matter  of  Whittaker,  4  J.  C.  R. 
379,  and  cases  there  cited;  Roach  v.  Garxan,  1  Ves.  sen.  157. 

A  suit  does  not  abate  by  the  infant's  coming  of  age.  No  cliange  is 
necessary  in  the  proceedings.     Cur.  Can.  464 ;  Cary  22.] 


125  BY   WHOM    A    WRIT  [ClIAP.  II. 

for  that  purpose  as  a  matter  of  course  (g)  ;  and  if 
it  happens  that  an  idiot  or  a  lunatic  has  no  com- 
mittee (A),  or  the  committee  has  an  interest  opposite 
to  that  of  the  person  whose  property  is  intrusted  to 
his  care  (i),  an  order  maybe  obtained  for  appointing 
anotlier  person  as  guardian  for  the  purpose  of  de- 
fending a  suit  (Ic).  So  if  a  person  who  is  in  the 
condition  of  an  idiot  or  a  lunatic,  though  not  found 
such  by  inquisition,  is  made  a  defendant,  the  court 
upon  information  of  his  incapacity  will  direct  a 
guardian  to  be  appointed  (/)  (1). 

(g)   Westcomb  v.  Westcomh,  Dick.     Lloyd  v. ,  Dick.  460. 

233.                        •  (k)    Howlett    v.     Wilbraham,    5 

(A)     Hoiolett    V.    Wilbraham,    5  Madd.  423. 

Madd.  423.  (I)  Anon.  3  P.  Wms.  Ill,  note  ;  see 

(i)  Snell  V.  Hyat  Dick.  287 ;  see  Wilson  v.  Grace,  14  Ves.  172. 

(1)  [And  see  Howlett  v.  Wilbraham,  6  Ves.  Jr.  423,  where  on  a 
motion  of  a  complainant,  a  lunatic  defendant  had  a  guardian  appointed 
to  put  in  an  answer.     And  see  Carter  v.  Carter,  1  Paige's  C.  R.  463. 

It  is  an  almost  universal  rule,  that  the  lunatic  need  not  be  made  a 
party  defendant  with  his  comtnittee.  The  suit  should  be  against  the 
latter  as  committee.  Executors  of  Brasher  v.  Van  Cortlandt,  2  X  C, 
R.  242 ;  7  eal  v.  Woodworth,  3  Paige's  C.  R.  470 ;  and  see  in  the  mat- 
ter of  Heller,  lb.  199.  Althougii  a  person  has  been  found  a  lunatic 
abroad,  yet  upon  his  leaving  his  country  for  another,  a  commission 
would  have  to  issue  within  the  latter  country,  before  he  could  be 
brought  before  the  court  as  in  ordinary  cases.  Matter  of  Housloun,  1 
Russ.  C.  R.  312. 

A  committee  must  be  appointed  for  a  non-resident  lunatic,  to  enable 
such  committee  to  obtain  the  control  ot  property  within  the  jurisdiction 
of  the  court.  Matter  of  Pettit,  2  Paige's  C.  R.  174 ;  Ex  parte  Baker, 
Coop.  C.  C.  205. 

It  is  doubtful  how  far  the  insolvency  of  a  committee  will  be  a  suffi- 
cient cause  for  removing  him  as  a  party  and  actor.  Ex  parte  Mild- 
may,  3  Ves.  Jr.  2  ;  Ex  parte  Proctor,  1  Svvanst.  532  ;  Ex  parte  Liv' 
ingston,  1  J.  C.  R.  434. 

It  would  seem,  that  where  there  is  a  joint  appointment  of  two  as 
committee,  and  one  dies,  a  fresh  appointment  must  take  place.  Ca. 
Temp.  Talbot,  143;  but  see  Ex  parte  Picard,  3  V.  &.  B.  127;  £x 
parte  Lyne,  Forrest,  143. 


126 


S.  I.]  MAY    BE    DEFENDED.  12S 

A  married  woman,  though  she  cannot  by  herself  ^'^'^^•^^°"^°- 
institute  a  suit,  and  if  her  husband  is  not  joined  with 
her  must  seek  the  protection  of  some  other  person 
as  her  next  friend,  may  yet,  by  leave  of  the  court, 
defend  a.  suit  separately  from  her  husband  without 
the  protection  of  another  (?/i).  Thus,  if  she  claims 
in  opposition  to  any  claims  of  her  husband,  or  if  she 
lives  separate  from  him  (n),  or  disapproves  the  de- 
fence he  wishes  her  to  make  (p),  she  may  obtain  an 
order  for  liberty  to  defend  the  suit  separately  (/?), 
and  her  answer  maybe  read  against  her  (q).  If  a 
husband  is  plaintiff  in  a  suit,  and  makes  his  wife  ^  ^ 
a  defendant,  he  treats  her  as  a  feme  sole,  and  she 

(?n)  4   Via.  Ab.  147,  Baron    and  in  by  a  married  woman  without  an 

Feme,  I.  a.  20  ;  1  Sim.  &  Stu.  1G3.  order  for  the   purpose  may  be  sup- 

[Barry  v.   Cane,  3  Madd.  R.  472  ;  pressed  as   irregularly   filed.     But  if 

Ormshy  v.  White,  1   Hogau's  C.  R.  filed  with  her  approbation,  and  ac- 

254.]  cepted  by  the  plaintiff,  it  will  not  be 

(n)  Portman  v.  Popham,  Tothill,  deemed     irregular     upon    objection 

75 ;  Jackson  v.  Haworih,  1  Sim.  &  taken    by  her   merely    for   want  of 

Stu.  161.  the  order  for  leave  to  file  it  separate- 

(o)  Ex  parte  Halsam.  2  Atk.  50  ;  ly ;  and  she  will  be  bound  by  an  offer 

2  Eq.  Ca.  Ab.  66,  contained  in  it.     See  Duke  of  C/tan- 

(p)   Powell   V.    Prentice,    Ca.    t.  das  v.  Talbot,  2  Y.Wms.  311 ;  S.  C. 

Hardw.  258  ;    Wybourn    v.    Blunt,  Sel.  Ca.  in.  Cha.  24. 
Dick.  155.     A  separate  answer  put         (g)   Travers  v.  Buckly,  I  \es.383. 

Where  the  property  is  small,  a  party  in  the  situation  of  a  lunatic 
has  been  allowed  to  answer  by  guardian,  without  the  appointment  of  a 
committee.  Ex  parte  Picard,  supra;  Anonymous,  cited  in  [B.]  3  P. 
Wms.  Ill  ;  Eyre  v.  Wake,  4  Ves.  Jr.  795;  Wilson  v.  Grace,  14  Ves. 
Jr.  171. 

Where,  after  a  decree  in  a  suit,  in  which  a  lunatic  and  his  commit- 
tee are  defendants  and  the  committee  dies  and  a  new  one  is  appointed, 
a  motion  should  be  made  for  an  order  that  the  latter  be  named  as  the 
committee  in  all  the  future  proceedings  in  the  cause.  Lyon  v.  Mercer, 
1  Sim,  &  Stu.  356. 

The  committee  of  a  lunatic,  who  has  voluntarily  accepted  the  ap- 
pointment, cannot  be  discharged  without  showing  some  valid  excuse 
for  resigning  his  trust.     In  the  matter  of  Lylle,  3  Paige's  C.  R.  251.] 


126  BY   WHOM   A   WRIT  [ChAP.  II. 

may  answer  separately  without  an  order  of  the 
court  for  the  purpose  (r),  The  wife  of  an  exile,  or 
of  one  who  has  abjured  the  realm,  may  defend  as 
she  may  sue  alone  (s)  ;  and  if  a  husband  is  out  of 
the  jurisdiction  of  the  court  (t),  though  not  an  exile, 
or  if  he  cannot  be  found  {u),  his  wife  may  be  com- 
pelled to    answer  separately  (1).     If  a   married 

(r)    Ex    parte    Strangeways,    3  b.  133,  a.;  and  2  Vern.  105. 
Atk.  478 ;  Brooks  v.  Brooks,  Free.         (0   Carlton  v.  M'Enzie,  10  Ves. 

in  Chan.  3^4;  Ainslie  v.  Medlicott,  442;  Bunyan  v.  Mortimer,  6  Madd. 

13  Vee.  266.  278. 

(«)  See  page  24,  19  Co.  Litt.  132,         (m)  Bell  v.  Hyde,  Free,  in  Cli.  328. 

(1)  [An  order  must  be  obtained  for  a  wife  to  answer  separately 
before  she  can  do  so.  A  husband  may  obtain  this  order  where  he 
cannot  influence  his  wife  to  answer ;  and  where  the  husband  is  abroad 
and  not  amenable  to  the  jurisdiction,  the  complainant  may  obtain  the 
order.  And  it  is  doubtful  whether,  in  either  case,  the  husband  can 
answer  separately  before  there  is  an  order  that  the  wife  shall  put  in  a 
separate  answer.  The  practice,  however,  seems  to  be  to  receive  his 
answer.  And  yet,  if  it  were  not  a  case  in  which  an  order  might  be 
obtained  for  the  wife  to  answer  separately,  she  must  answer  jointly  ; 
and  then  his  answer,  if  on  file,  must  be  taken  off,  in  order  that  she  may 
join  it.  Garey  v.  Whiltingham,  supra.  The  wife  becomes  a  substan- 
tial party  to  a  suit,  only  from  the  time  of  the  order  that  she  should 
answer  separately.     Jackson  v.  Haworth,  supra. 

It  is  not  a  ground  for  the  wife's  answering  alone  that  her  husband 
,  is  in  prison.  Anonymous,  2  Ves.  Jr.  332 ;  and  see  Duke  of  Chandos 
V.  Talboi,  2  P.  Wms.  371. 

If  a  female  defendant  marry  and  neglect  or  refuse  to  disclose  the 
fact,  so  that  her  husband  might  be  regularly  brought  before  the  court, 
the  cause  may  proceed  without  regard  to  marriage.  Harily  v.  O' Fla- 
herty, 1  Mol.  5 ;  and  see  Thorold  v.  Hay,  Dick.  410. 

If  a  married  woman  be  of  unsound  mind  and  deserted  by  her  hus- 
band, and  she  is  a  defendant  in  a  suit,  an  order  must  be  obtained,  which 
of  course  for  her  putting  in  her  answer  separate  from  her  husband, 
having  had  a  guardian  appointed  her.     1  Grant's  Pr.  354. 

Where  a  woman  was  abandoned  by  her  husband,  and  could  get  no 
person  to  be  her  guardian,  she  was  allowed  to  file  her  answer  without 
■one.     Glover  v.  Young,  Bunb.  167. 

Where  a  feme  sole  answers,  and  afterwards,  pendente  lite,  marries, 
the  plaintiff  may  proceed  against  her  without  reviving,  and  the  bus- 


S.  1.] 


MAY  BE  DEFENDED. 


126 


woman  obstinately  refuses  to  join  in  defence  with 
her  husband,  she  may  also  be  compelled  to  make 
a  separate  defence  ;  and  for  that  purpose  an  order 
may  be  obtained  that  process  may  issue  against 
her  separately  (x).  Except  under  such  circum- 
stances a  married  woman  can  only  defend  jointly 
with  her  husband  (y). 


(x)  Pain  V. ,  1  Ca.  in  Cha. 

296;  1  Sim.  &  Stu.  163. 

(y)  As  to  the  answer  of  a  married 
woman,  see  further,  Plomer  v.  Plo- 
mer,  1  Ch.  Rep.  68 ;  Wrottesley  v. 
Bendisk,  3  P.  Wms.  235  ;  Penne  v. 
Peacock,  Ca.  t.  Talb.  41 ;  Murriett 
V.  Lyon,  Bunbury,  175;    Ex  parte 


Halsam,  2  Atk.  50 ;  Traverse  v. 
Buckley,  1  Wils.  R.  264  ;  Barry  v. 
Cane,  3  Madd.  472  ;  Jackson  v.  Ha- 
worth,  1  Sim.  &.  Stu.  161 ;  Garey  v. 
Whittingham,  1  Sim.  &.  Stu.  163  j 
Bushell  V.  Bushell,  1  Sim.  &  Stu. 
164. 


band  shall  be  bound  by  the  answer  she  made  while  sole. 
296,  (6th  edit.;)  and  see  Gary,  81.] 


1  Harr.  Pr. 


127 


[106]  CHAPTER  II. 

Section  II. — Part  I. 

Of  the  Nature  of  the  various  Modes  of  Defence  (1) 
to  a  Bill ;  and  first  of  Demurrers. 

Four  modes  of  It  lias  beGii  mentioned  (a)  that  the  person  against 

dafence.  i   m  •        i      i      •  11      i 

whom  a  bill  is  exhibited,  being  called  upon  to 
answer  the  complaint  made  against  him,  may  de- 
fend himself,  1.  Bydemurrer,  by  which  he  demands 
the  judgment  of  the  court  whether  he  shall  be 
compelled  to  answer  the  bill  or  not  (h).  2.  By  plea, 
whereby  he  shows  some  cause  why  the  suit  should 
be  dismissed,  delayed,  or  barred  (c).  3.  By  an- 
swer, which  controverting  the  case  stated  by  the 
plaintiff,  confesses  and  avoids,  or  traverses  and  de- 

(«)  Pages  14,  15,  16,  17.  (c)  Ibid.  324,  Wy.  Ed. 

(6)  Pract.  Reg.  162,  Wy.  Ed. 

(1 )  [See  a  neat  synopsis  of  the  different  modes  of  defence  in  equity 
opposite  to  page  319,  in  Lube  on  Pjeading.] 

The  rules  of  pleading  are  founded  in  good  sense,  and  are  more  sim- 
ple than  the  rules  of  special  pleading  in  an  action  at  law.  But  the 
forms  and  rules  of  p'eading  both  in  suits  at  law  and  in  courts  of 
equity,  are  lo  be  strictly  observed,  otherwise  great  laxity  of  pleading 
may  follow  and  the  object  of  the  rules  would  be  defeated.  But  as  the 
most  learned  and  careful  pleader  in  the  hurry  of  business  may  make 
mistakes  in  mere  matt.-rs  of  form,  amendments  are  allowed  with  great 
liberality,  and  without  costs,  unless  the  opposing  par'y  is  thereby  pre- 
judiced; and  thus  any  hardship  which  a  party  might  otherwise  suffer 
by  mistakes  in  matters  of  form  which  have  no  bearing  on  the  merits 
of  the  cise  may  be  avoided.     (  Wright  v.  Dame,  22  Pick.  R.  58,  55.) 

But  in  pleading  matters  of  substance  in  equity,  it  was  held  in  Bur- 
din  V.  Grew,  8  Id.  HI,  108,  that  the  same  strictness  is  required  as  at 
law. 

But  see  p.  [295]  note,  infra. 


S.  II.  p.  I.]  DEMURRERS.  127 

nies,  the  several  parts  of  the  bill  (d)  ;  or,  admitting 
the  case  made  by  the  bill,  submits  to  the  judgment 
of  the  court  upon  it,  or  upon  a  new  case  made  by 
the  answer,  or  both  ;  or  by  disclaimer,  which  at 
once  terminates  the  suit,  the  defendant  disclaiming 
all  right  in  the  matter  sought  by  the  bill  (e).  And 
all  or  any  of  these  modes  of  defence  may  be  joined, 
provided  each  relates  to  a  separate  and  distinct  part 
ofthebill  (1). 

It  has  also  been  observed  that  the  grounds  on  various  ^ounda 

"  of  defence. 

which  defence  may  be  made  to  a  bill,  either  by  an-     rio?] 
swer,  or  by  disputing  the  right  of  the  plaintiff  to  128 

compel  the  answer  which  the  bill  requires,  are  va-  i^ifferci>t 

r  T  '  grounds  ot    oe- 

rious  both  in  their  nature  and  in  their  effect.     Some  game  bm.*''^ 
of  them,  though  a  complete  defence  as  to  any  relief, 
are  not  so  as  to  a  discovery ;  and  when  there  is  no 

{d)  2   West.    Symb.    Chan.  194;         (e)  Pract.  Reg.  175,  Wy.  Ed. 
Pract.  Reg.  11,  Wy.  Ed. 


(2)  If  any  part  of  the  bill  is  good  and  entitle  plaintifF  to  relief  or 
discovery  a  demurrer  to  the  whole  cannot  be  sustained.  It  is  an  es- 
tablished and  universal  rule  of  pleading  in  chancery  that  a  defendant 
may  meet  a  complainant's  bill  by  several  modes  of  defence.  He  may 
demur,  answer  and  plead  to  different  parts  of  the  bill ;  so  that  if  a  bill 
for  a  discovery  contain  proper  matter  for  the  one  and  not  for  the  other, 
•defendant  should  answer  the  proper  and  demur  to  the  improper  matter; 
and  if  he  demur  to  the  whole  bill  the  demurrer  must  be  overruled. 
Livingston  v.  Story,  9  Peters  657.  [658,]  632.  But  the  several  de- 
fences must  each  refer  to  and  profess  in  terms  to  be  put  in  "as  a  defence 
to  separate  and  di.stinct  parts  of  the  bill.  {Leacraft  v.  Demprey,  4 
Paige  R.  125,  124.)  Defendant  cannot  plead  and  demur,  answer  and 
demur  to  the  whole  or  some  part  of  the  bill.  [Clark  v.  Phelps,  6 
Johns.  C.  R.  214;  Beauchamp  v.  Gibhs,  1  Bibb,  481.]  i^ee  infra 
[212,]  [300]. 

In  Massachusetts  the  subject  is  regulated  by  express  rules.  R.  21, 
28,  see  24  Pick.  417,  415. 

In  New- York  the  pleadings  on  part  of  defendant  are  now  limited  to 
two,  demurrer  and  answer.     See  code  of  procedure. 


128  DEMURRERS.  [ChAP.  IL 

ground  for  disputing  the  right  of  the  plaintiff  to  the 
relief  prayed,  or  if  the  bill  seeks  only  a  discovery,  yet 
if  there  is  any  impropriety  in  requiring  the  discovery, 
or  if  it  can  ansvv^er  no  purpose  for  which  a  court  of 
equity  ought  to  compel  it,  the  impropriety  of  com- 
pelling the  discovery,  or  the  immateriality  of  the  dis- 
covery if  made,  may  be  used  as  a  ground  to  protect 
the  defendant  from  making  it.  Different  grounds  of 
defence  therefore  maybe  applicable  to  different 
parts  of  a  bill ;  and  every  species  of  a  bill  requiring 
its  own  peculiar  ground  to  support  it,  and  its  own 
peculiar  form  to  give  it  effect,  a  deficiency  in  either 
of  these  points  is  a  ground  of  defence  to  it. 

Natnre  and  gene-  -.iti  ^      r'    i     f 

rai  causes  of  a        Whcnevcr  auv  ffround  oi  deience  is  apparent  on 
the  bill  itself  (1),  either  from  matter  contained  in  it^ 


demurrer. 


grJSn^ed^on  an  (1)  Allowing  that  a  demurrer,  founded  on  the  Ship  Registry  Acts, 
allegation  which  would  hold  to  a  bill  respecting  a  ship,  if  the  bill  alleged  that  the  ship 
pressiy  allege  was  British  built ;  an  allegation  that  the  ship  was  built  by  a  builder 
which  Ae'de-  described  to  be  of  a  particular  place  in  this  country,  is  not  a  sufficient 
^"'■'■^J"  ^  allegation  to  ground  upon  it  such  a  demurrer ;  because  the  ship  may 

have  been  built  by  that  builder  in  some  other  part  of  the  world.     Smith 

V.  Small,  14  Sim.  119. 
inconeutent  g^t  where  two  inconsistent  statements  are  made  in  a  bill,  a  defend- 

ttatemenU.  i  ,  i  ■   i    • 

ant  is  entitled,  upon  demurrer,  to  adopt  that  which  is  most  against  the 

plaintiff's  interest.  So  that  where  tlie  plaintiff  would  have  no  right 
to  institute  the  suit,  as  issue  in  tail,  and  the  bill  sets  forth  the  limita- 
tions of  a  settlement  in  such  a  manner  as  to  show  that  the  plaintiff's 
father  is  tenant  for  life,  with  remainder  to  the  plaintiff  as  tenant  in 
tail,  but  subsequent  parts  of  the  bill  speak  of  the  father  as  tenant  in 
tail,  and  of  the  plaintiff  as  heir  in  tail ;  the  defendant  is  entitled,  on 
demurrer,  to  treat  the  bill  as  stating  that  the  plaintiff  is  issue  in  tail, 
and  not  as  tenant  in  tail.  Vernon  v.  Vernon,  2  My.  &.  C.  145.  As 
to  an  inference  on  demurrer,  see  same  case. 
False  allegation  And  when  a  plaintiff  founds  his  case  upon  the  allegation  that  a 
of  recognition  of  foreign  country  is  recognised  by  the  English  government  as  an  inde- 
pendent state,  and  that  allegation  is  false,  the  judge  is  bound  to  know 
judicially  that  it  is  false,  and  to  allow  a  demurrer  depending  on  its  fal- 
sity.   For  it  is  the  duty  of  the  judge  in  every  court  to  take  notice  of 


S.  II.  p.  I.]  DEMURRERS.  128 

or  from  defect  in  its  frame,  or  in  the  case  made  by  it, 

the  proper  mode  of  defence  is   by  demurrer.  (1)  129 

A  demurrer  is  an  allegation  of  a  defendant,  which, 

admitting  the  matters  of  fact  (/)  alleged  by  the  bill 

to  be  true  (2),  shows  that  as  they  are  therein   set 

(/)  A  demurrer  confesses  matter  2  Ves.  &  B.  95  ;  3  Meriv.  503  ;  Cuih- 
of  fact  only,  and  not  matter  of  law.  hert  v.  Creasy,  G  Madd.  189.  [Pry- 
Lord  Raym.  18;   1  Ves.  Jr.  78,  289 ;     or  v.  Adams,  Call's  R.  391.] 


public  matters  which  affect  the  government  of  the  country ;  and  the 
courts  of  the  sovereign  should  act  in  unison  with  the  government  of 
the  sovereign.      Taylor  v.  Barclay,  2  Sim.  213. 

(1)  [Harris  v.  Thomas,  1  Hen.  &  Munf.  18;  Alderson  v.  Riggars, 
4  lb.  472.] 

(Ti  See  note  to  original  page  [211],  infra.  [A  demurrer  to  a  bill 
must  be  founded  on  some  dry  point  of  law,  which  goes  to  the  absolute 
denial  of  the  relief  sought;  and  not  on  circumstances  in  which  a  mi- 
nute variation  may  incline  the  court  either  to  grant,  or  modify,  or 
refuse  the  application.  Verplanck  v.  Caines,  1  J.  C.  R.  67.]  It  admits 
all  material  allegations  on  every  cliar^e  or  fact,  well  pleaded,  not  every 
thing  slated.  Smith  v.  Allen  et  al.,  Saxton  C.  R.  N.  J.  52,  43  ;  Goble 
V,  Andriiss  et  al.,  I  Green  C.  R.  76,  66,  71  Arg. 

Its  office  is  to  bring  before  the  court  the  right  to  maintain  the  bill 
upon  the  admission  pro  hac  vice  of  the  entire  truth  of  all  its  allegations, 
and  the  court  cannot  look  aliunle,  to  search  out  or  conj  'cture  what 
other  facts  might  or  did  exist  to  defeat  it;  tor  this  is  the  office  of  a  plea 
or  answer.     Ocean  Insurance  Co.  v.  Fields,  2  Story  Rep.  77,  59. 

[A  demurrer  is  the  negation  of  the  rule  of  law  laid  down  in  the  first 
proposition  of  the  bill,  namely,  that  the  right  to  discovery  and  relief 
results  from  the  relation  assumed;  or,  rather  since  the  causes  of  de- 
murrer must  be  assigned,  (Ueamcs'  Ord.  Chan.  77,  173,)  it  is  a  negative 
proposition,  that  from-  the  complainants  oicn  showing,  he  has  not  the 
right  to  discovery  and  relief,  either,  because  the  relation  stated  by  him 
is  not  adequate,  or,  because  there  are  some  of  the  objections  to  answer- 
ing apparent  on  the  face  of  the  bill.  Thus,  an  issue  in  law  is  joined, 
not  in  the  first  instance  on  the  complainant's  right,  but  on  the  validity 
of  the  causes  assigned;  and  if  any  of  those  causes  be  allowed  on  ar- 
gument, the  right  is  necessarily  gone.  The  statement  of  tiie  causes 
of  demurrer,  tiierefore,  will  be  nothing  more  than  a  reference  to  the 
bill  and  an  enumeration  of  the  objections  appearing  on  the  face  of  it 

on  which  the  defendant  means  to  rely.     Hence  arises  two  questions : 

Whether  the  objection,  as  stated,  really  exists?  and  whether  such  ob- 

13 


Ends  of  a  do 
murrer. 


129  DEMURRERS.  [ChAP.  II. 

forth  they  are  insufficient  for  the  plaintiff  to  proceed 
upon  or  to  obHge  the  defendant  to  answer  (g)  ;  or 
that  for  some  reason  apparent  on  the  face  of  the 
[108]  bill  (Ji),  or  because  of  the  omission  of  some  matter, 
which  ought  to  be  contained  therein,  or  for  want  of 
some  circumstance  which  ought  to  be  attendant 
thereon,  the  defendant  ought  not  to  be  compelled 
to  answer.  It  therefore  demands  the  judgment  of 
the  court  whether  the  defendant  shall  be  compelled 
to  make  answer  to  the  plaintiff's  bill,  or  to  some 

130  certain  part  thereof  (?').  The  causes  of  demurrer 
are  merely  upon  matter  in  the  bill  {k),  or  upon  the 
omission  (Z)  of  matter  which  ought  to  be  therein 
or  attendant  thereon  ;  and  not  upon  any  foreign 
matter  alleged  by  the  defendant  (jn).  The  prin- 
cipal ends  of  a  demurrer  are,  to  avoid  a  discovery 
which  may  be  prejudicial  to  the  defendant,  to  cover 
a  defective  title,  or  to  prevent  unnecessary  ex- 
pense. If  no  one  of  these  ends  is  obtained,  there  is 
little  use  in  a  demurrer.  (1)  For,  in  general,  if  a  de- 
murrer would  hold  to  a  bill,  the  court,  though  the 
defendant  answers,  will  not  grant  relief  upon  hear- 
ing the  cause.     There  have  been,  however,  cases 

(g)  Prac.  Reg.  162,  Wy.  Ed.  (t)  2  Ves.  247. 

(A)  Ord.  in  Cha.  26,  Ed.  Bea.  (/)  3  P.  Wms.  395. 

(t)  3  P.  Wms.  80  ;  Prac.  Reg.  162,  (m)  Ord.  in  Cha.  26,  Ed.  Bea. 
Wy.  Ed. ;  see  2  Sch.  &  Lefr.  206. 

jection  is  valid  ?  The  first  is,  generally,  a  question  of  the  adequate- 
ness  of  the  relation  stated  by  the  bill ;  the  latter  is  a  question  on  the 
rule  of  law:  and  the  defendant  should,  in  assigning  the  causes  of  de- 
murrer, clearly  point  out  the  nature  of  the  o!>jection  which  he  takes,_ 
and  how  it  appears  on  the  adverse  pleading.     Lube,  338,  339,  340.] 

(1)  [Therefore,  a  bill  praying  for  a  receiver  is  not,  on  that  account, 
demurrable,  as  the  appointment  of  one  rests  in  the  sound  discretion  of 
the  court.     Verplanck  v.  Caines,  1  J.  C.  R.  67. 


S.  II.  p.  I.]  DEMURRERS.  130 

in  which  the  court  has  given  rehef  upon  hearing, 
though  a  demurrer  to  the  rehef  would  probably  have 
been  allowed  (w).     But  the  cases  are  rare.  [1^9] 

Bills  have  been  already  considered  under  three  ing  of  demur- 

.  .   .    '■6'™' 

general  heads;  1,  original  bills;  2,  bills  not  origi- 
nal ;  and,  3,  bills  in  the  nature  of  original  bills. 
The  several  kinds  of  bills  ranged  under  the  second 
and  third  heads  being  consequences  of  bills  treated 
of  under  the  first  head,  the  defence  which  may  be 
made  to  original  bills  in  its  variety  comprehends  the 
several  defences  which  may  be  made  to  every  other 
kind  of  bill,  except  such  as  arise  from  the  peculiar 
form  and  object  of  each  kind.  In  treating  there- 
fore of  demurrers  it  will  be  convenient  first  to  con- 
sider demurrers  to  original  bills,  under  which  head  131 
the  nature  of  demurrers  in  general,  and  tlie  principal 
grounds  of  demurrer  to  every  kind  of  bill,  will  be 
necessarily  noticed  :  the  distinct  causes  of  demurrer 
peculiar  to  the  several  other  kindsof  bills  will  be  then 

(n)  3  P.  Wms.  150  ;  12  Mod.  171,  or  confessed,  a  decree  would  then  be 

(1).     It  seems  that  the  court,  upon  made.     See  2  Ves.  Jr.  97  ;  Brook  v. 

tlje  argument  of  a  demurrer,  decides  Hewitt,  3  Ves.  253  ;  6  Ves.    CSC  ;  7 

upon  the  facts  as  stated  in  the  bill,  Ves.  245  ;    2  Sch.    &,  Lefr.  638 ;  6 

whether  if  the  cause  were  to  proceed  Madd.  95  (2). 
to  a  hearing,  and  they  were  proved 

(1)  Aiifi  see  Ludlow  v.  Simond,  on  appeal,  2  C.  C.  E.  I. 

(2)  In  Underlnll  v.  Van  Cortlandt,  2  J.  C.  R.  339,  an  objection  was 
made  at  the  liearinir,  after  answer,  that  the  remedy  was  at  law.  The 
court  said — "  At  any  rate,  by  answering  in  chief,  instead  of  demurring, 
"  the  defendants  submitted  the  cause  to  the  coj^nizauce  of  this  court, 
"  and  they  come  too  late,  at  the  hearing  on  the  merits,  to  raise  the  ob- 
"jection.  It  would  be  an  abuse  of  justice,  if  the  defendants  were  to 
"be  permitted  to  protract  a  litigation  to  this  extent,  and  with  the  ex- 
«'  pense  that  has  attended  tiiis  suit,  and  then,  at  the  fmal  hearing,  inte- 
'' po>e  this  preliminary  objection."  And  see  Grnndin  v.  Lnoy  2 
Paige's  C.  R.  509 ;  U.  S.  v.  Sturges,  1  Paine's  C.  C.  R.  526 ;  and 
Uawtey  v.  Cramer,  4  Cowen,  717.] 


131  DEMURRERS.  [ChAP.  !!► 

mentioned  ;  and  in  the  third  place  will  be  con- 
sidered the  frame  of  demurrers  in  general,  and  the 
manner  in  which  their  validity  is  determined. 

In  treating  of  original  bills  they  have  been  divided 
into  bills  praying  relief,  and  bills  not  praying  relief; 
and  it  has  been  mentioned  that  both  require  a  dis- 
covery from  the  party  against  whom  the  bill  is  exhi- 
bited. Demurrers  to  original  bills  may  therefore  be 
considered  under  two  heads :  first,  demurrers  to  re- 
lief, which  frequently  include  a  demurrer  to  dis- 
covery ;  and  secondly,  demurrers  to  discovery  only, 
which  sometimes  consequentially  affect  the  relief. 
Under  these  heads  will  necessarily  be  considered 
the  causes  of  demurrer,  as  well  to  bills  which 
seek  a  discovery  only  as  to  such  as  likewise  pray 
relief. 
[110]  From  what  has  been  observed  in  a  preceding 

of dRmuSerto*  P^gG  it  may  be  collected  tliat  the  principal  grounds 
of  objection  to  the  rehef  sought  by  an  original  bill,, 
which  can  appear  on  the  bill  itself,  and  may  there- 
fore be  taken  advantage  of  by  demurrer,  are  these 
(o)  ;  I.  that  the  subject  of  the  suit  is  not  within  the 

(0)  It  has  been  said  that  a  defend-  bill  may  be  dismissed.  Anon.  Mosely, 
ant  may  demur  to  a  bill  if  it  appears  47,  356;  Anon.  Dunbury,  17  ;  Owens 
upon  the  face  of  it  to  be  brought  for  v.  Smith,  Cotnyn,  715;  Brace  v. 
a  very    small    sum  ;  but  it  is  most  Taylor,  2  Atk.  253.  (1) 

usual  to  apply  to  the  court  that  the 

(1)  [And  see  2  R.  S.  173  ;  Moore  v.  Ly'tle,  4  J,  C.  R.  183 ;  Fuller- 
inn  V.  Jackson,  5  Jb.  276 ;  Douw  v.  Sheldon,  2  Paige's  C.  R.  303 ;  Vre- 
denburgh  v.  Johnson,  1  Hopk.  112;  Milchellv.  Tighe,  lb.  119;  Hamil-^ 
ton  V.  Joh'iSoTi,  Vern.  &  Scriv.  394. 

It  is  said,  that  the  value  of  the  mat'er  in  demand  which  determines 
the  jurisdiction  of  the  court,  is  to  be  ascertained  hy  the  chiim  made  by 
the  complainant  in  his  bill,  and  not  by  the  finding;  of  tiie  court.  Skin-- 
ner  v.  Bailey,  7  Day's  R.  496  ;  Judd  v.  Bushnell,  lb.  205.  A  justice's; 
judgment;  where  the  amount  is  $100  and  upwards,  is  as  well  entitled 


S.  TI.  P.  I.]  DEMURRERS.  131 

jurisdiction  of  a  court  of  equity  ;  II.  that  some  other 
court  of  equity  has  the  proper  jurisdiction  ;  III.  that 
the  plaintiff  is  not  entitled  to  sue  by  reason  of  some  ^'^^ 

personal  disability  ;  IV.  that  he  has  no  interest  in 
the  subject,  or  no  title  to  institute  a  suit  concerning 
it ;  V.  that  he  has  no  right  to  call  on  the  defendant 
concerning  the  subject  of  the  suit  ;  VI.  that  the  de- 
fendant has  not  that  interest  in  the  subject  which 
can  make  him  liable  to  the  claims  of  the  plaintiff; 
VII.  that  for  some  reason  founded  on  the  substance 
of  the  case,  the  plaintiff  is  not  entitled  to  the  relief 
he  prays.  To  these  may  be  added,  VIII.  the  de- 
ficiency of  the  bill  to  answer  the  purpose  of  complete 
justice  :  and  IX.  the  impropriety  of  confounding 
distinct  subjects  in  the  same  bill, or  of  unnecessarily 
multiplying  suits.     When  the  discovery  sought  by  when  demurrer 

,.,,  ,,  .  ,  T/»  -.to  the  relief  will 

a  bill  can  only  be  assistant  to  the  rehei  prayed,  a  extend  to  the 
ground  of  demurrer  to  the  relief  will  also  extend  to 
the  discovery  ;  but  if  the  discovery  may  have  a  fur- 
ther purpose,  the  plaintiff  may  be    entitled   to  it 


to  the  aid  of  a  court  of  equity  as  the  jiidtrnient  of  a  court  of  record. 
Bailetj  V.  Burton,  8  Wendell's  H.  339.  Several  judgment  creditors, 
the  joint  amount  of  whose  juduinents  is  $100  or  upwards,  may  unite  in 
a  bill  for  discovery  and  to  remove  impediments  at  law  created  by  the 
fraud  of  their  common  debtor.  lb.  A  bill  of  discovery  to  aid  a  suit 
at  law,  although  the  sum  in  controversy  is  under  $100,  will  be  sus- 
tained in  the  court  of  chancery  of  the  State  of  New-York.  Golder  v. 
Becker,  1  Edwards'  V.  C.  R.  271.]  Schroeppel  v.  Redjield,  5  Paige 
R.  246,  245.  Before  the  abolition  of  that  court  in  New-York,  defend- 
ant might  demur  or  move  to  dismiss  with  costs,  if  it  appoared  on  the 
bill  that  the  subject  in  controversy  was  beneath  the  jurisdiction.  If 
it  dill  not  appear  he  must,  to  avail  of  the  objection,  bring  it  up  by  his 
plendings.  The  proper  averment  of  the  bill  would  be  in  the  language 
of  the  statute,  "that  the  value  of  the  defendants  equitable  intere.-ts, 
&c.,  exceeds,  or  is  more  than  $100."  Bradl  v.  Kirkpatrick,  7  Paige's 
R.  62-4;   Smels  v.   Williams,  4  Id.  365,  364. 


discovery. 


132  DEMURRERS.  [ChAP.  II^ 

[111]  tliongh  he  has  no  title  to  relief.  In  considering, 
therefore,  these  several  grounds  of  demurrer  to  re- 
lief, such  as  may,  and  such  as  cannot,  extend  to 
discovery  likewise,  will  be  distinguished. 

dicuon."*"'"""  I.  The  general  objects  of  the  jurisdiction  of  a 
court  of  equity.  (1)  have  been  noticed  in  a  former 
page  {p)  ;  and  from  thence  it  may  be  collected,  that 

Where  the  ju-  the  jurisdictiou,  when  it  assumes   a  power  of  de- 

risdiction  is  ex-      .    .  .  ■  •         i     /-i  \  i  ,  i  •        •     i 

ercised.  cisiou,  IS  to  DG  excrciscd,  (1),  whcro  the  prmciples 

^'^^  of  law,  by  w^hich  the  ordinary  courts  are  guided, 

give  a  right,  but  the  powers  of  those  courts  are  not 
sufficient  to  afford  a  complete  remedy,  or  their 
modes  of  proceeding  are  inadequate  to  the  purpose  ; 
2,  where  the  courts  of  ordinary  jurisdiction  are  made 
instruments  of  injustice;  3,  where  the  principles 
of  law  by  w^hich  the  ordinary  courts  are  guided  give 
no  right,  but  upon  the  principles  of  universal  justice, 
the  interference  of  the  judicial  power  is  necessary 
to  prevent  a  wrong,  and  the  positive  law  is  silent: 
and  it  may  also  be  collected  that  courts  of  equity" 
without  deciding  upon  the  rights  of  the  parties, 
administer  to  the  ends  of  justice  by  assuming  a 
jurisdiction  ;  4,  to  remove  impediments  to  the  fair 
decision  of  a  question  in  other  courts  ;  5,  to  provide 
for  the  safety  of  property  in  dispute  pending  a 
litigation,  and  to  preserve  property  in  danger  of 
being  dissipated  or  destroyed  by  those  to  whose 
care  it  is  by  law  intrusted,  or  by  persons  having 

(/))   Pages  4,  5. 

(1)  The  reader  is  referred  generally  to  the  Treatises- on  the  subject 
of  Equity  Jurisprudence  or  Jurisdiction,  as  to  this  part  of  Lord  Redes- 
dale's  Treatise,  extending  from  tliis  page  to  page  [151],  inasmuch  as 
it  belongs  to  that  subject  rather  than  to  the  subject  of  Equity  Plead- 
ings, and  embraces  a  very  wide  field. 


S,  II.  p.  I.]  DEMURRERS.  133 

immediate  but  partial  interests ;  6,  to  restrain  the 
assertion  of  doubtful  rights  in  a  manner  productive 
of  irreparable  damage  ;  7,  to  prevent  injury  to  a  [112] 
third  person  by  the  doubtful  title  of  others  :  and 
8,  to  put  a  bound  to  vexatious  and  oppressive  liti- 
gation, and  to  prevent  multiplicity  of  suits  :  and 
further,  that  courts  of  equity,  without  pronouncing 
any  judgment  which  may  affect  the  rights  of  parties, 
extend  their  jurisdiction  ;  9,  to  compel  a  discovery, 
or  obtain  evidence  which  may  assist  the  decision  of 
other  courts ;  and  10,  to  preseiTe  testimony  when 
in  danger  of  being  lost  before  the  matter  to  which 
it  relates  can  be  made  the  subject  of  judicial  in-  "1.34 

vestigation. 

1.  Cases  frequently  occur  in  which  the  principles  compie'te^reLe*- 
(f/)  by  which  the  ordinary  courts  are  guided  in  their  f ^Jgarright,' Si 
admmistration  ot  justice  give  a  right,  but  trom  ac- 
cident or  fraud,  or  defect  in  their  mode  of  proceed- 
ing, those  courts  can  afford  no  remedy,  or  cannot 
give  the  most  complete  remedy  ;  and  sometimes  the     rUS] 
effect  of  a  remedy  attempted  to  be  given  by  a  court 

(q)  The  existence  of  courts  of  ceedings  of  the  ordinary  courts  have 
equity  in  England  distinct  from  the  not  admitted  of  the  application.  And 
courts  of  ordinary  jurisdiction,  has  from  time  to  time  the  courts  of  com- 
sugsjested  an  idea  that  the  ordinary  men  law  have  also  been  induced  to 
courts,  and  especially  the  courts  of  admit,  as  grounds  of  their  decision, 
common  law,  have  not  in  their  ad-  rules  established  in  the  courts  of 
ministration  of  justice  any  recourse  equity,  which  they  had  before  reject- 
to  such  principles  of  decision  as  are  ed  as  clashing  with  established  rules 
merely  rules  of  equity.  But  in  fact  of  the  common  law;  and  for  some 
those  principles  have  been  as  cou-  purposes  they  have  also  noticed  prin- 
stautly  applied  by  the  ordinary  courts  ciples  of  decision  established  in  the 
as  by  the  courts  of  equity  (1),  except  courts  of  equity,  which  the  forms  of 
where  they  have  clashed  with  estab-  proceeding  iu  the  courts  of  common 
lished  rules  of  the  common  law,  and  law  have  not  enabled  them  directly 
where  the  forms  observed  in  the  pro-  to  enforce. 


(1)  See  Smith's  "  Manual  of  Equity  Jurisprudence,"  Introd.  Sect.  I. 


loit  bonds, 


134  DEMURRERS.  [ChAP.  IL 

of  ordinary  jurisdiction  is  defeated  by  fraud  or  ac- 
cident. In  such  cases  courts  of  equity  will  inter- 
pose to  give  those  remedies  which  the  ordinary 
courts  would  give  if  their  powers  were  equal  to  the 
purpose,  or  their  mode  of  administering  justice 
185  could  reach  the  evil ;  and  also  to  enforce  remedies 

attempted  to  be  given  by  those  courts  when  their 
effect  is  so  defeated. 

Thus  where  an  instrument  on  which  a  title  is 
founded,  as  a  bond,  is  lost,  a  court  of  equity  will 
interfere  to  supply  the  defect  occasioned  by  the  ac- 
cident, and  will  give  the  same  remedy  which  a 
court  of  common  law  would  have  given  if  the  ac- 
cident had  not  happened  (r)  (1).     If  an   instru- 

(r)  1  Ca.  in  Cha.  11;  1  Eq.  Ca.  Company  v.   Boddam,  9   Vea.  464; 

Ab.  92  ;  1   Atk.  287 ;  Anon.  2  Atk.  Seagrave  v.  Seagrave,  13  Ves.  439  ; 

61  ;  Anon.  3   Atk.  17  ;  1    Ves.  344;  Smith  v.  Bicknell,  3  Ves.  &  B.  51j  n. 

5  Ves.  238  ;  7  Ves.  19  ;  East  India  Stokoe  v.  Rohson,  3  Ves.  &..  B.  51. 

(1)  [See  the  form  of  a  bill  for  relief  where  a  bond  is  lost,  Willis,  13. 
A  bill  will  lie  by  the  last  endorsee  of  a  lost  bill  of  exchange  to  recover 
the  amount  from  the  acceptor;  and  prior  endorsees  need  not  be  made 
parties  to  the  suit.  Macartney  v .  Graham,  2  Sim.  28;  and  see  Davies 
V.  Dodd,  4  Price,  176.)  So  the  court  has  jurisdiction  of  bill  to  recover 
against  endorsers  of  a  lost  note.  The  foundation  of  chancery  juris- 
diction in  such  cases,  is,  it  seems,  the  power  to  compel  indemnity.  In- 
demnity against  the  re-appearance  of  the  note  must  be  offered  in  the 
bill,  and  forms  part  of  the  decree.  It  need  not  be  tendered  before  bill 
filed.  Affidavit  of  the  loss  accompanies  the  bill.  Smith  et  al.  v. 
Walker  et  al.,  1  Smed;>s  &  Marshall  (Miss.)  Ch.  R.  43 J;  see  Soaks' 
Administrator  v.  Friend's  Administrator,^  Ohio  R.  78. 

If  bill  founded  on  loss  of  deed  or  instrument  be  not  sustained  by  affida- 
vit, it  is  demurrable.  If  party  failed  to  demur,  but  answer  over  to  the 
bill,  or  allowed  it  to  be  taken  as  confessed,  it  seems  the  absence  of  the 
affidavit  is  not  sufficient  for  reversal  of  the  decree.  Findley  et  al.  v. 
Hinde  and  wife,  1  Peters  244. 

See  the  reasons  why  an  affidavit  is  required  in  England  or  in  equity 
courts  of  general  jurisdiction ;  and  why  the  rule  does  not  apply  in 
Massachusetts.     Campbell  v.  Sheldon,  13  Pick.  R.  19,  20,  8. 


S.  II.  p.  I.]  DEMURRERS.  135 

merit  has  been  destroyed,  or  is  fraudulently  sup-  i"tro7eT°8up'^°* 
pressed,  or  withheld  from  the  party  claiming  under  ^mT  '*"^^' 
it,  courts  of  equity  will  also  give  relief  (s)  (1)  ; 
as  they  will  generally  lend  their  aid  whenever  by 
fraud  or  accident  a  person  is  prevented  from  effec- 
tually asserting  in  the  courts  of  ordinary  jurisdic- 
tion rights  founded  on  principles  acknowledged  by 
those  courts  (2). 

In  some  instances  courts  of  law  have  acted  on 
the  supposed  destruction  or  suppression  of  an  in-  [114] 
strument,  where  formerly  those  courts  conceived 
they  could  not  act  for  want  of  the  instrument,  es- 
pecially in  the  particular  mode  of  proceeding. 
Thus  in  the  case*  of  a  supposed  suppression  or 
destruction  of  a  lease  for  lives  under  a  [)ower  in  a 
settlement,  the  supposed  lessee  was   permitted  to  136 

obtain  on  parol  testimony  a  verdict  and  judgment 
in  ejectment,  upon  a  feigned  demise,  the  form  of 
the  proceeding  not  requiring  the  lease  in  question 
to  be  in  any  manner  stated  in  the  pleadings,  so  that 
it  could  not  appear  upon  the  record  under  what 
title  the  recovery  was  had,  or  what  specific  lands 
were  in  the  supposed  lease,  what  were  the  lives 
for  which  it  was  granted,  what  the  rent  reserved, 
or  what  covenants  bound  either  party;  or  whether 
the  lease  was  or  was  not  according  to  the  powers 

(.s)  See  Lord  Hunsdon's  case,  lioh.  Wms.  720;  Atkins  v.  Farr,  1   Atk. 

109  ;  Eyton  v.  Eyton,  2  Vern.  380  ;  287  ;   Tucker  v.  Phipps,3  Atk. 359  ; 

Sanson  v.   Rumsey,   2    Vern.   561  ;  1   Ves.   392 ;    Saltern  v.   Melhuish, 

Dalston  V.  Coatsworth,  1  P.  Wms.  Ambl.  249 ;    Bowles  v.    Stewart,  1 

731 ;  Coteper  v.  Earl  Cowper,  2  P.  Sch.  &  Lefr.  209. 

(1)  [See  the  form  of  a  bill  where  an  instrument  has  been  fraudu- 
lently witliheld  from  tlie  party  claiming  it.     Willis,  27.] 

(2)  See  note  to  p.  132. 


136  DEMURRERS.  [ChaP.  IL 

under  which  it  was  alleged  to  have  been  made. 
The  consequence  necessarily  was  a  suit  in  equity 
to  have  all  those  facts  ascertained,  and  to  restrain 
the  execution  of  the  judgment  in  ejectment  in  the 
mean  time  (1). 
waste,  In  restraining  waste  (1),  by  persons  having  limi- 

ted interests  in  property,  the  courts  of  equity  have 
generally  proceeded  on  the  ground  of  the  common- 
law  rights  of  the  parties,  and  the  difficulty  of  obtain- 
ing immediate  preservation  of  property  from  de- 
struction or  irreparable  injury  by  the  process  of  the 
common  law  {t)  but  upon  this  subjectthe  jurisdic- 
tion has  been  extended  to  cases  in  which  the  reme- 
[115]  dies  provided  in  those  courts  could  not  be  made  to 
apply  (u). 

137  Where  an  act  of  parliament  has  expressly  given 

(t)  See  Field  v.   Jackson,   Dick,  ble,  see  19  Ves.  151,  155  ;  and  as  to 

599;    Davis    v.   Leo,   6   Ves.    784;  those  where  the  injury  is  not  acknow- 

Smith  V.  Collyer,  8  Ves.  89  ;  9  Ves.  ledged  at   law,  which    are   cases  of 

356;  19  Ves.  154.   (2)  equitable  waste,  see   Chamherly ne  v. 

(u)  As  to  the  instances  where  the  Dtimmer,   1    Bro.  C.  C.   166;  S.  C. 

title  is  legal,  and  the  courts  of  law  Dick.  600  ;    Marquis  of  Downshire 

admit  the  existence' of  an  injury,  but  v.  Sandys,  6  Ves.  107;  Lord  Tam- 

do  not  afford  a  remedy,  see  2  Freem.  worth,  v.  Lord  Ferrers,  6  Ves.  419  ; 

54;  Perrot  v.  Perrot,  3  Atk.  94;  3  T/illiams  v.  M'Namara,  8  Ves.  70; 

Atk.  210  ;  Farrant  v.  Lovell,  3  Atk.  Barges  v.  Lamb,  16  Ves.  174 ;  Day 

723  ;  3  Atk.  755,  756  ;  MoUineux  v.  v.  Merry,  16  Ves.  375  ;  Marchioness. 

Powell,  3  P.  Wms.  268,  n. ;  3   Bro.  of  Ormonde  v.  Kynersley,  5  Madd. 

C.  C.  544;  Onslow  V. ,  16  Ves.  369;     Lu^^hington     v.     Boldero,    6 

163;  Pratt  v.  Brett,  2  Madd.  R.  62;  Madd.  149  ;  Coffin  v.  Coffin,  1  Jac. 

Brydges  v.  Stephens,  6  Madd.  279  ;  R.  70  (3). 
ae  to  those  where  the  title  is  equita- 

(1)  See  note  to  p.  132. 

[See  the  form  of  a  bill  to  restrain  waste  by  persons  having  limited 
interests  in  property.      Willis,  39;  Equity  Draft.  458.  (2d  edit.) 

(2)  [Brashear  v.  Macey,  3  J.  J.  Marshall's  R.  93.  This  bill  is  the 
only  remedy  which  a  complainant  has,  when  he  is  entitled  to  a  con- 
tingent interest  which  may  never  vest.     lb. ;  and  see  note  (u)  above.} 

(3)  [See  the  cases  on  waste  amplified  in  Jeremy's  Eq.  Jur.  327.] 


S.  II.  p.  I.]  DEMURRERS.  137 

a  right,  the  courts  of  ordinary  jurisdiction  have 
been  found  incompetent  to  give,  in  all  cases,  a  full 
and  complete  remedy,  and  the  courts  of  equity 
have  therefore  interposed  (1).  Thus  in  the  case  j,-;^oi-ent  debt- 
of  a  person  who  had  been  discharged  under  an 
act  for  relief  of  insolvent  debtors,  by  which  his  fu- 
ture effects  were  made  liable  to  the  demand  of  his 
creditors,  but  his  person  was  protected  ;  the  court 
of  chancery,  exercising  its  extraordinary  jurisdic- 
tion, enforced  a  judgment  of  a  court  of  common 
law  against  his  effects,  which  were  so  circum- 
stanced as  not  to  be  liable  to  execution  at  the 
common  law.  (.c)  (2). 

(x)  Edgell  V.  Haywood,  3   Atk.  352.     See  1  Jac.  &  W.  371.  (3) 


(1)  See  note  to  p.  132. 

(2)  See  the  form  -  f  a  bill,  Willis,  45.] 

(3j  [2  K.  S.  173;  Williams  v.  Brotvu,  4  J.  C.  R.  687;  BrivkerlioJjT 
V.  Broun,  lb.  b71  ;  Hidden  v.  Spader,  on  appeal,  -20  .1.  R.  554  ;  S.  C, 
6  J.  C.  R.  280  :  WDerrnuti  v.  Strong,  4  J.  C.  687;  Beck  v  Burden, 
i  Pair's  C.  R.  306;  Candler  v.  Pei.ii,  lb.  168;  Edmeslon  v.  Lijde,  lb. 
637;  Slillwdl  v.  Vtn  Eps,  Fb.  615;  Eiger  v.  Price,  2  ib.  334;  U.  8. 
V.  Slurges,  1  Paine's  C.  C.  R.  525  ;  M' Elwain  v.  Willis,  on  appeal. 
9  Wendell's  R.  54S ;  Le  Hoy  v.  lingers,  3  Paige's  C.  R.  234;  Prac- 
tice in  Ohio  Chancery,  Ads  of  1831,  vol.  29,  p.  84,  ^  16.  A  judg- 
ment in  the  court  of  the  United  States  is  not  sufficient  to  ground  a 
bill  for  reaching  property  of  a  debtor  not  subject  to  execution.  It 
stands  upon  no  other  ground  than  tho  judgments  of  courts  of  sister 
stales.  Tarbell  v.  Griggs,  3  Paige's  C.  R.  207.  A  creditor's  bill 
cannot  be  filed  until  after  the  return  day  of  the  execution  is  gone  by; 
and  its  issuing  and  return  must  be  set  forth.  Cassidy  v.  Meacham,  3 
Pai;:e's  C.  K.  311.  Creditors  by  judgment  and  decree  may  join  in  such 
a  bill.  Clarksonv.  De  Peyslr,  Ib.  320.  An  omission  of  the  averments 
required  in  a  creditir's  bill,  by  the  189ih  ruleof  the  court  of  chancery  of 
the  State  of  New-York,  is  good  ground  of  demurrer.  M^Elwain  v. 
Willis,  lb.  505. 

Pvery  species  of  property  belonging  to  a  debtor  may  be  reached  and 
applied  to  the  satisfaction  of  his  debts.     Edmeslon  v.  Lyde,  lb.  637. 


137  DEMURRERS.  [ClIAP.  11. 

Where  parties  by  contract  have  given  a  right, 
but  have  not   provided    a  sufficient   remedy,  the 

rent,  courts  of  equity  have  also  interfered  (1).       Thus 

where  a  rent  was   settled  upon  a  woman  by  way 

[116]     of  jointure,  but  she  had  no  power  of  distress,  pr 


The  judgment  is  prima  facie  evidence  against  the  debtor  or  mere 
strangers.     Garland  v.  Rives,  4  Randolph's  R.  282.] 

Independent  of  statute  in  New-York,  the  court  of  Errors  in  HadJen 
V.  Spader,  20  Johns  R.  held  that  a  judgment  creditor  whose  execution 
was  returned  unsatisfied,  might  come  into  chancery  to  reach  an  in- 
terest of  debtor  in  property  which  could  not  be  sold  under  execution 
at  law.  Farnham  v.  Campbell,  10  Paige  R.  601,  598.  And  the  object 
of  that  statute  was  to  establish  and  declare  the  great  principle  decided 
in  that  case.     Gleason  v.  Gage,  1  Id.  123. 

The  bill  may  be  filed  on  execution  unsatisfied,  although  complainant 
has  brought  a  suit  on  that  judgment  and  recovered  a  new  judgment 
thereon  in  another  state.  Bates  v.  Lyons,  7  Paige's  R.  85,  86;  contra, 
Mitchell  v.  Biince,  2  Id.  606,  overruled.  The  opinion  that  the  second 
extinguished  or  merged  the  first  judgment,  as  intimated  in  Mitchell  v. 
Bunce,  was  wrong. 

If  the  judgment  on  which  execution  is  unsatisfied  is  assigned,  the 
assignee  may  file  the  bill,  without  taking  out  new  execution.  He  need 
not  state  in  the  bill  the  particulars  of  the  consideration  of  the  assign- 
ment which,  being  under  seal,  imports  consideration.  Gleason  v. 
Gage,  7  Paige's  R.  123-4,  121;  contra,  Wakeman  v.  Russell,  1  Edw. 
C.  R.  509,  which  was  a  misapprehension  of  the  statute  on  creditors' 
bills. 

When  an  insolvent  debtor  assigns  his  property  to  de'raud  his  credi- 
tor, or  fraudulently  releases  a  debt,  a  judgment  creditor  who  has  ex- 
hausted his  remedy  at  law,  may,  notwithstanding  such  voluntary 
assignment  file  his  bill  to  reach  the  property  in  the  hands  of  the  frau- 
dulent vendee  or  recover  the  debt  so  released.  And  the  voluntary  as- 
signee of  tlie  insolvent  debtor,  acquired  no  right  to  recover  the  debt 
which  had  been  so  fraudulently  assigned.  Brownell  v.  Curtis,  10 
Paige's  R.  218,  219,  217,  210,  211 :  contra,  Bayard  v.  Hoffman,  4  Johns. 
-C.  R.  450,  in  which  case  it  is  supposed  that  the  chancellor  overlooked 
the  distinction  between  a  voluntary  assignment  by  the  fraudulent 
grantor  and  one  by  operation  of  law  under  the  bankrupt  acts. 

In  New- York  by  the  code  of  procedure,  a  judgment  creditor  has  now 
•a  simpler  method  of  reaching  his  debtor's  property,  than  by  filing  a 
sbill,  after  execution  returned  .unsatisfied.     Code  \  247,  et  seq. 

(1)  See  note  top.  132. 


S.  IT.  P.  I.]  DEMURRERS.  137 

Other  remedy  at  law,  the  payment,  according  to  the 
intent  of  the  conveyance,  was  decreed  in  equi- 
ty {if).  So  where  parties,  meaning  to  create  a  l^mS!"' 
perfect  title,  have  used  an  imperfect  instrument,  *  138 
as  a  feoffment  without  livery  of  seisin  (z)  (1),  a 
bargain  and  sale  without  enrolment  (a)  ;  a  surren- 
der of  copyhold  not  presented  according  to  the 
custom"  of  the  manor  (h) ;  courts  of  equity  have 
considered  the  imperfect  instrument  as  evidence 
of  a  contract  for  making  a  perfect  instrument,  and 
have  remedied  the  defect  even  against  judgment 
creditors  (c)  who  had  gained  a  lien  in  the  land  in 
question,  though  when  the  consideration  has  been 
inadequate,  relief  has  not  been  extended  so  far  {d). 
Where  the  legislature  has  declared  that  an  instru- 
ment wanting  in  a  particular  form  should  be  null 
and  void  to  all  intents  and  purposes,  and  it  was 
manifestly  the  design  of  the  legislature  that  those 
words  should  operate  to  the  fullest  extent,  relief 
has  been  refused.  Thus  a  bill  of  sale  of  a  ship 
wanting  a  formality  required  by  the  Register  Act 
was  not  made  good  in  equity  against  assignees  of 
the  vendor  become  bankrupt  {e). 

Relief  has  also  been  s^iven  where  a  remedy  at  law     [H '  J 

^  ''  confusion  of 

was  originally  provided,  but  by  subsequent  accident  boundaries, 

{y)    Plunket  v.   Brereton,   1   Ch.  {c)  See  IP.  Wms.  279. 

Rep.  5  ;  and  see  Duke  of  Leeds  v.  {d)  Finch  v.  Earl  of  Winchelsea, 

Powell,  1  Ves.  171.  1  P.  Wms.  277,  28.3. 

{z)  Burgh  V.  Francis,  cited  1  P.  (c)   Hihbert   v.   Rolleston,  3   Bro. 

Wms.  279;  Burgh  \.  Burgh,  Rep.  t.  C.  C.   571;  6  Ves.  745;  Spcldt  v. 

Find),  28.  Lechmere,  13  Ves.  588 ;   Thompson 

(a)  6  Ves.  745.  v.  Leake,  1  Madd.  R.  31). 

(6)  Taylor  v.Whecler,  2  Vern.  5G4. 

(1)  [See  the  form  of  a  bill  to  remedy  a  defective  deed,  Willis  55.j 


138  DEMURRERS.  [ChAP.  II. 

could  not  be  enforced;  as  where  by  confusion  of 
boundaries  of  lands,  remedy  by  distress  for  rent  was 
defeated  (/)  (1).  So  if  the  remedy  afforded  by  the 

139  ordinary  courts  is  incomplete,  a  court  of  equity  will 
lend  its  aid  to  give  a  complete  remedy  (g)  (1). 

chattels  of  pecu-  tt  i-  i         i*ii  i-^^i/* 

uar  value,  Upon  this  grouud  a  bill  was  admitted  tor  recovery 
of  an  ancient  silver  altar  claimed  by  the  plaintiff  as 
treasure  trove  within  his  manor  :  for  though  he 
miffht  have  recovered  at  law  the  value  in  an  action 
of  trover,  or  the  thing  itself,  if  it  could  be  found,  in 
an  action  of  detinue^yet  as  the  defendant  might 
deface  it,  and  thereby  depreciate  the  value,  it  was 
determined  that  the  defect  of  the  law  in  that  par- 
ticular ought  to  be  supplied  in  equity  (/«).  And 
.  where  an  estate  was  held  by  a  horn,  and  a  bill  was 
brought  by  the  owner  of  the  estate  to  have  the  honi 
delivered  to  him,  a  demurrer  was  overruled  (J). 

deeds  and  wri-       XJpou  thc  samc  principle  (k)  the  jurisdiction  of  the 

court  is  supported  in  the  very  common  case  of  a  bill  for 

delivery  of  deeds  or  writings  (/)  (1),  suggesting  thrt 

[118]     they  are  in  the  custody  or  power  of  the  defendant; 

though  in  early  times  it  seems  to  have  been  consi- 

(/)   1    Ves.    172.      See    North  v.  Read,  3  Ves.  71  ;  Lowther  v.    [jord 

Earl  and   Countess  of  Sirafford,  3  Lowther,  13  Ves.  95. 

p.  Wins.  148  ;   Bouverie  v.  Prentice,  (i)   Pusey  v.  Pusey,  1  Vern.  273  ; 

1  Bro.  C.  C.  200,  and  Duke  of  Leeds  and  see  Earl  of  Micclesjield  v.  Da- 

V.    Corporation  of  New   Radnor,  2  vis,  3  Ves.  &.  Bea.  16. 

Bro.  C.  C.  338;  S.  C.  ib.  518,  and  C^-)  See  2  Atk.  3U6. 

the  cases  there  cited.  (/)  The  court  of  chancery  has  long 

{g)  See  9  Ves.  33.  exercised  its  extraordinary  jurisdic- 

(A)  Duke  of  Somerset  V.  Coolson,  tion    in   this  case      See  9    Edvv.  IV. 

3   P.  Wms.  390;  and  see  Fells  v.  41  B.  and  Stat.  32  Hen.  VIII.  c.  36. 


(1)  See  note  to  p.  132. 

[See  the  form  of  a  bill  in  such  a  case,  Willis  69.] 


S.  II.  p.  I.]  DEMURRERS.  140 

dered  that  the  jurisdiction  did  not  extend  to  cases 
where  an  action  of  detinue  would  he  (m). 

In  the  case  of  contracts  or  agreements  this  prin-  C^cer' 
ciple  is  carried  to  the  extent  (1).  Tlie  principles  by 
which  the  courts  of  common  law  direct  their  deci- 
sions on  the  subject  acknowledge  the  mutual  right 
of  the  contracting  parties  to  specific  performance  of 
the  agreements  they  have  made  ;  but  the  mode  of 
proceeding  in  those  courts  enables  them  only  to 
attempt  to  compel  performance  by  giving  damages 
for  non-performance.  Here  therefore  the  courts  of 
equity  interfere  to  give  that  remedy  which  the  ordi- 
nary courts  w^ould  give  if  their  mode  of  administer- 
ing justice  would  reach  the  evil,  by  decreeing,  ac- 
cording to  the  principles  of  the  common  law  as  well 
as  of  natural  justice,  specific  performance  of  the 
agreement  (/i)  (2).  This  however  extends  only  to 
contracts  of  which  a  specific  performance  is  essen- 
tial to  justice  (/y);  for  if  damages  for  non-perfor-  [119] 
mance  are  all  that  justice  requires,  as  in  the  case  of 

8.  9:  and  see  on  tliis  subject    Brown  no  action  would  lie  at  the   comnfion 

V.  Brown,   Dick.  62;  1    Madd.  R.,  law   for    non -performance  ;    and  on 

192 ;  Crow  v.  Tyrrell,  3  Madd.  179 ;  this  head  great  complaints  have  been 

Knye  V.  Moore,  1  Sim.  &  Stu.  61  ;  made,  the  justice  of  which  it  ia  be- 

Balch  V.  Symes,  1  Turn.  87.  yond   tl>e   purpose  of  this  treatise  to 

(m)  9    Edw.  IV.  41   B. ;  see   also  coivsider.     See  1  Foubl.  Treat,  of  Eq. 

39  Hen.  VI.  26;  Brooke  Prter.  45;  151,  n.  (c),and  2  Sch.  &.  Lefr.  347, 

which  seems  to  have  been  in  effect  a  and   Williams  v.  Steward,  3  Meriv. 

bill  for  discovery  and  account.  472.     As  to  tlie  propriety  of  extend- 

(n)   13    Ves.   76,  228;  2   Sch.   &  ing- the  applicatiou  of  the  doctrine  of 

Lefr.  556;  1  Jac  &  W.  370.     The  part  performance, see  3  Ves.  712,  713  ; 

courts  of  equity  decree  performance  6  Ves.  32,  37 ;  2  Sch.  Sl  Lefr.  5. 
of  agreement  in  many  cases   where  (o)   See  3   Bro.  C.  C.  543  ;  8  Ves. 


(1)  See  note  to  p.  132. 

(2)  [See  bills  to  compel  the  specific  performance  of  an  agreement, 
Willis,  83  ;  Equity  Draft.  9,  11,  et.  seq.] 


140  DEMURRERS.  [ChAP.  IL 

a  contract  for  stock  in  the  public  funds,  a  court  of 

141  equity  will  not  interfere  {p).  In  other  cases  where 
compelling  a  specific  act  is  the  only  complete  remedy 
for  an  injury,  and  the  ordinary  courts  can  attempt  to 
give  this  remedy  only  by  giving  damages,  the  courts  of 
equity  will  interfere  to  give  the  specific  remedy, 
especially  if  the  right  has  been  established  by  the 
determination  of  the  ordinary  courts  (jf). 

In  some  cases,  as  in  matters  of  account  (^)  (2)^ 

163  ;  2  Sch.  &  Lefr.  347.  (1)  1,  244;  S.  C.  1  Wils.  Ch.  R.  4G0; 

{p)  Cud    V.  Rutter,   1    P.   Wms.  Walker    v.  Barnes,  3    Madd.  247; 

570 ;  10  Ves.  161  ;  13  Ves.  37.  Hudson  v.  Bartram,  3  Madd.  440  ; 

{q)  It  is  difficult  to  reconcile   all  Franklyn   v.    Tuton,  5  Madd.  469  ; 

the    cases  in   which    the    courts  of  Dawson  v.  Ellis,  1   Jac.  &  W.  524  ; 

equity  have  compelled  the  perform-  Baxter  v.  Conollij,  1  Jac.  &  W.  576, 

ance  of  agreements,  or  refused  to  do  Martin   v.  Mitchell,  2  Jac.   &  W. 

so,  with  each  other;    and  in  some  413;  Beaumont  v.  Dukes,  1  Jac.  R. 

cases  -where  performance  has  been  422;   Gordon  v.  Smart,  1   Sim.  &, 

decreed,  it  is  difficult  to  reconcile  the  Stu.   66  ;    Bryson    v.   Whitehead,  1 

decisions  with  the  principles  of  equal  Sim.  &  Stu.  74;  Doloret  v.  Roths- 

jiistice.     The  cases  and  their  varie-  child,  1  Sim.  &.  Stu.  590  ;  Lingenv. 

ties  are  numerous,  and  have  been  Snn^son,  1  Sim.  &  Stu.  600  ; /I  o^a?- v. 

ably  collected  in  1  Fonbl.  Treat,  of  Maclew,l  Sim.  &  Stu.  418  ;  Hasker 

Equity.     Of  the  later  cases  on  the  v.  Sutton,  2  Sim.  &  Stu.  513;  Le- 

subject,    see    Morphett  v.  Jones,   1  win  v.  Guest,  1  Russ.  R.  325 ;  Att- 

Swanst.  172;  S.  C.  1  Wils.  Ch.  R.     woodv. ,  1  Russ.  R.  353. 

100;  Garrard  v.Grinling,  2  Swenist.  (r)  See  2  Ves.  388  ;  Corporation 

(1)  [Cathcart  v.  Robinson,  5  Peters,  264.  In  Hepburn  v.  Dunlap, 
1  Wheat.  179,  it  is  said,  that,  generally  speaking,  a  court  of  law  is 
competent  to  afford  an  adequate  remedy  to  either  party  to  a  breach  of 
contract,  from  whatever  cause  it  may  have  proceeded ;  and  th^t  when- 
ever this  is  the  case,  a  resort  to  a  court  of  equity  is  improper.] 

So,  after  considerable  lapse  of  time,  unless  upon  very  special  cir- 
cumstances. Even  where  time  is  not  of  the  essence  of  the  contract, 
courts  of  equity  will  not  interfere,  where  there  have  been  long  delay 
and  latches,  on  the  part  of  the  party  seeking  a  specific  performance. 
And  especially,  will  they  not,  where  there  have  been  a  great  change 
of  circumstances,  and  new  interests  intervened.  Holt  v.  Rogers,  8 
Peters,  433,  420, 

(2)  See  note  to  p.  132.     [Hawley  v.  Cramer,  4  J.  C.  R.  717.] 


B,  II.  P.  I.]  DEMURRERS.  141 

partition  of  estates  between  tenants  in  common  (s),  ^on?Md  Isl^- 
and  assignment  of  dower  {t)  (2),  a  court  of  equity  ™Tx2()T*' 
will  entertain  jurisdiction  of  a  suit,  though  a  remedy  142 

might  perhaps  be  had  in  the  courts  of  common 
law  (3),  The  ground  upon  which  the  courts  of 
equity  first  interfered  in  these  cases  seems  to  have 
been  the  difficulty  of  proceeding  to  the  full  extent  of 
justice  in  the  courts  of  common  law  (ti).  Thus 
though  accounts  may  be  taken  before  auditors  in  an 
action  of  account  in  the  courts  of  common  law,  yet 
a  court  of  equity  by  its  mode  of  proceeding  is  en- 
abled to  investigate  more  effectually  long  and  intri- 
cate accounts  in  an  adverse  way,  and  to  compel 
payment  of  the  balance  whichever  way  it  turns  (4). 

of  Carlisle  v.  Wilson,  13  Ves.  276  C.  C.  620;  2  Ves.  Jr.  129;  17   Ves. 

1  Sch.  &  Lefr.  309.  552.     [Powell  v.   The  Monson  and 

(s)  See    2    Freem.  26 ;  2  Ves.  J.  Brimfield    Manufacturing    Co.,    3 

570  ;  Turner  v.  Morgan,  8  Ves.  143  ;  Mason,  378.] 

17  Ves.  552;  IVes.  &B.555;  Mil-  (u)   2   Ves.    388;    13    Ves.    279. 

lev  V.   Warmington,   1   Jac.   &  W.  Perhaps  in  some  of  these  cases  the 

484  (1).                                                   •  jurisdiction  was  first  assumed  to  pre- 

(t)  See   Curtis  v.  Curtis,  2  Bro.  vent  multiplicity  of  suits. 


(1)  [Jeremy's  Eq.  Juris.  303.  Equity  has  concurrent  power  in  par- 
tition. Farmers  v.  Respass,  5  Munroe,  564;  Wisely  v.  Findlay,  3 
Randolph,  361 ;  2  Revised  Statutes  N.  Y.  329  to  332 ;  Harwood  v. 
Kirbyri  Paige's  C.  R.  469  ;  Jenkins  v.  Van  Schaick,  3  lb.  242.  Chan- 
cery is  the  proper  tribunal  for  tenants  in  common  of  personal  estate  : 
for  they  can  have  no  partition  of  it  at  common  law.  Smith  v.  Smith, 
4  Randolph's  (Virginia)  R.  95.  Partition  suits  in  the  court  of  chan- 
cery of  the  State  of  New-York  mny  be  commenced  by  bill  or  partition. 
Larkin  v.  Mann,  2  Paige's  C.  R.  27.  For  a  slight  history  of  the 
English  and  New- York  Statutes  relating  to  partition,  see  Gallalian  v. 
Cunningham,  8  Cowen's  R.  362.] 

(2)  [See  the  form  of  a  bill  for  dower.  Willis,  110;  Equity  Draft. 
212,  (2d  edit.)] 

(3)  {Moses  V.  Loicis,  12  Price,  509.] 

(4)  A  bill  for  an  account  is  not  demurrable  merely  because  the  plain-  Oraission  of  an 
tiff  does  not  offer  to  account  at  all,  or  does  not  offer  to  account  for  as  "fler  to  account. 

14 


142  DEMURRERS.  [ClIAP.  IL 

In  the  case  of  partition  of  an  estate  (1),  if  the 
titles  of  the  parties  are  in  any  degree  compHcated, 
the  difficulties  which  have  occurred  in  proceeding  at 
the  common  law  have  led  to  applications  to  courts 
of  equity  for  partitions,  which  are  effected  by  first 
ascertaining  the  rights  of  the  several  persons  inte- 
^^'^  rested,  and  then  issuing  a  commiision  to  make  the 

partition  required,  and  upon  return  of  the  commis- 
sion, and  confirmation  of  that  return  by  the  court,  the 
partition  is  finally  completed  by  mutual  conveyances 
of  the  allotments  made  to  the  several  parties  (x). 
But  if  the  infancy  of  any  of  the  parties,  or  other 
circumstances,  prevent  such  mutual  conveyances, 
the  decree  can  only  extend  to  make  the  partition, 
[121]     give  possession,  and  order  enjoyment  accordingly 

(x)  Cartwright  v.Pultney,2  Atk.  380;  2  Sch.  &  Lefr.  372;  1  Jac.  & 
W.  493.  (1) 


much  as  he  ought  to  account  for;  for  he  may  be  made  to  account  to 
the  full  extent  of  what  is  just, -although  he  does  not  even  admit  him- 
self to  be  an  accounting  party.      Clark  v.  Tipping,  4  Beav,  588. 
Offer  in  a  bill  for      If  a  bill  is  filed  for  an  account  of  the  rents  and  profits  received  by 

an  acconnt  of      ^i  .  /•  ■.  i_       •  f  -^     i_    •         • 

rents  received     '"^  grantee  01  an  annuity,  who,  in  consequence  ot  its  bemg  in  arrear, 

by  an  annuitant,  jg  ]jj  posfesslon  of  the  premises  demised  to  secure  the  annuity,  the  bill 

must  contain  an  offer  either  to  redeem  on  the  terms  of  the  annuity 

deed,  or  to  ri^-purchase  up  n  equitable  terms  to  be  settled,  by  the  court. 

Knebell  v.  White,  2  Y.  &  C.  Eq.  Ex.  15. 

(1)  See  note  to  p.  132. 

(2)  [See  Warfield  v.  Gamhrill,  1  Gill  &  Johns.  503.  If  the  title 
of  the  complainant  in  a  particular  suit  is  denied  or  it  depends  upon 
doubtful  facts  or  questions  of  law,  a  court  of  equity  will  either  dismiss 
the  bill  or  retain  it  until  the  right  is  decided  at  law.  Sfranghan  v. 
Wright,  4  Randolph's  (Virginia)  R.  493  ;  iS.  P.  in  cases  of  dower, 
Wells  V.  Beall,  2  Gill  &  Johns.  468 ;  Wilkin  v.  Wilkin,  1  J.  C.  R. 
Ill  ;  Phelps  V.  Green,  3  lb.  302;  Cox  v.  S7nilh,  4  lb.  271.  A  mere 
reversioner  without  the  concurrence  of  all  the  owners,  cannot  have  a 
partition.     Striker  v.  Mott,  2  Paige's  C.  It.  387.] 


S.  II.  p.  I.]  DEMURRERS.  143 

until  effectual  conveyances  can  be  made  (1).  If  the 
defect  arise  from  infancy,  the  infant  must  have  a 
day  to  show  cause  against  the  decree  after  attaining 
twenty-one  ;  and  if  no  cause  should  be  shown,  or 
cause  shown  should  not  be  allowed,  the  decree  may 
then  be  extended  to  compel  mutual  conveyances  {if). 
If  a  contingent  remainder,  not  capable  of  being 
barred  or  destroyed,  should  have  been  limited  to  a 
person  not  in  being,  the  conveyance  must  be  delayed 
until  such  person  shall  come  into  being,  or  until  the 
contingency  shall  be  determined  ;  in  eitherof  which 
cases  a  supplemental  bill  will  be  necessary  to  carry 
the  decree  into  execution.  An  executory  devise 
may  occasion  a  similar  embarrassment  {%). 

In  the  case  of  dower  (3)  the  widow  is  often  much 
embarrassed  in  proceeding  upon  a  writ  of  dower  at 
the  common  law,  to  discover  the  titles  of  her  de- 
ceased husband  to  the  estates  out  of  which  she  144 
claims  her  dower,  to  ascertain  their  comparative 
value,  and  obtain  a  fair  assignment  of  a  third.  How 
far  the  courts  of  equity  will  assist  a  widow  in  the 
assignment  of  dower  has  been  at  different  times  a 
subject  of  much  question  ;  but  the  result  of  various 
decisions  seems  to  have  settled,  that  where  there  is 
no  ground  of  equity,  as  a  purchase  for  valuable  con- 
sideration (a),  to  prevent  their  interference,  the 
courts  will  proceed  to  set  out  dower;  though  if  the 

(y)  See  Ait.  Gen.  v.  Hamilton,  1     G  Ves.  498.  (2) 
Madd.  R.  214.  (a)   Williams  v.  Kamhe,  3  Bro.  C. 

(2)  See  the  case  of  Wills  v.  Slade,     C.  264. 

(1)  [And  see  Sears  v.  Hijer,  1  Paige's  C.  R.  483.] 

(2)  Also,  Striker  v.  Molt,  2  Paige's  C.  R.  3?i7;  Cheesemm  v.  Thome, 
1  Edwards'  V.  C.  R.  629. 

(3)  See  note  to  p.  132. 


144  DEMURRERS.  [ChAP.  II. 

[122]     title  to  dower  be  disputed,  it  must  be  first  established 
at  law  (/>). 

In  all  these  cases  the  courts  of  equity  will  lend 
their  aid  ;  but  they  have  generally  considered  them- 
selves in  so  doing  as  proceeding  merely  on  rights 
which  may  be  asserted  in  a  court  of  common  law, 
and  therefore  in  the  two  cases  of  partition,  and 
assignment  of  dower,  as  no  costs  can  be  given  in 
a  court  of  common  law  upon  a  writ  of  partition  or 
a  writ  of  dower,  no  costs  have  been  commonly  given 
in  a  court  of  equity  upon  bills  brought  for  the  same 

145  purposes  (c);  and  as  arrears  of  dower  can  be  reco- 
vered at  common  law  only  from  demand,  the  same 
rule  was  adopted  in  the  courts  of  equity,  unless  par- 
ticular circumstances  had  occurred  to  warrant  a  de- 
parture from  the  course  of  the  common  law,  found- 

[1231     ®^  ^"  the  terms   of  a  statute  {d).     The  courts  of 

(J)   Curtis  V.  Curtis,  2  Bro.  C.  C  Curtis,  15  May,  1778  ;   finally  re- 

620;  Mundy  V.  Mundy,  2   Ves.  Jr.  ported  in  2  Bro.  C.  C.  620.     See  also 

122.     The  last  case  was  upon  a  de-  the  case  of  D'Arcy  v.  Blake,  2  Sch. 

murrer,  which  after  much  consider-  &  Lefr.  387. 

atiou  was   overruled.     Lord    Talbot  (c)   Lucas  v.  Calcraft,  Dick.  594. 

had    overruled    a   demurrer     under  With    respect   to    costs  in  cases   of 

similar    circumstances    in    Moor    v.  partition,  see   Calmady  v.  Calmady. 

Blake,  26  July,  1735,  reported  Ca.  2  Ves.  Jr.  568  ;  Agar  v.  Fairfax,  17 

Temp.  Talb.  126,  by  the    name  of  Ves.  533;  1  Ves.  &  Bea.  554;  (1) 

Moore  and  Black.  And  a  like  decision  and  in  cases  of  dower,  see  Lucas  v. 

was  made  in  Meggott  v.  Meggott,  Calcraft,  1  Bro.  C.  C.  134,  and  S.  C. 

in  Cha.  15  Oct.  1743.     But  in  Read  1  Ves.  &,  Bea.  20,  note  ;  2  Ves.  128 ; 

V.  Read,  15  Dec.  1744,  the  court  re-  Worgan.  v.  Ryder,  1    Ves.   &   Bea. 

tained  the  bill,  and  ordered  the  deeds  20  (2). 

to  be  produced,  with   liberty  to  the  {d)  lathe  case  o?  Curtis  v.  Curtis, 

plaintiff  to  bring  a  writ    of   dower,  2  Bro.  C.  C.  620,  this  rule  was  not 

which  was  also   done   in   Curtis  v.  observed. 

(1)  [2  Revised  Statutes  of  N.  Y.  327,  J  62 ;  lb.  329,  J  79;  Phelps 
V.  Green,  3  J.  C.  R.  302 ;  Matter  of  Heniiup,  3  Paige's  C.  R  305.] 

(2  [Willis'  Eq.  PI.  110,  note  (a)  ;  Tahele  v.  Tabele,  1  J.  C.  R.  45 ; 
Hazen  v.  Thurbur,  4  lb.  604;  Russell  v.  Austin,  1  Paige's  C.  R.  192; 
Johnson  v.  'Ihomas,  2  lb.  377.] 


S.  II.   p.  I.]  DEMURRERS.  145 

equity  having  gone  the  length  of  assuming 
jurisdiction  in  a  variety  of  compUcated  cases  of 
account,  of  partition,  and  of  assignment  of  dower, 
seem  by  degrees  to  have  been  considered  as  having 
on  these  subjects  a  concurrent  jurisdiction  (/I)  with 
the  courts  of  common  law  in  cases  where  no  diffi- 
culty would  have  attended  the  proceedings  in  those 
courts. 

But  except  in  these  instances,  and  in  some  cases  fo^°ri^di^^on^ 
noticed  in  a  subsequent  page,  the  courts  of  equity 
will  not  assume  jurisdiction  where  the  powers  of 
the  ordinary  courts  are  sufficient  for  the  purposes 
of  justice ;  and  therefore,  in  general,  where  a  plaintiff 
can  have  as  effectual  and  complete  remedy  in  a 
court  of  law  as  in  a  court  of  equity,  and  that  remedy 
is  clear  and  certain  (e),  a  demurrer,  which  is  in 
truth  a  demurrer  to  the  jurisdiction  of  the  court,  146 

will  hold  (/)  (2), 

(J)  13  Ves.  279 ;  1  Sch  &  Lefr.  all  right  to  decide  upon  the  validity 

309  ;  1  Ves.  &  Bea.  555.  of  wills,  whether  of  real  or  of  per- 

(e)  Parry  v.  Owen,  3  Atk.  740  ;  sonal    estate,  a    demurrer   to    a   bill, 

Ghettoff  V.    Land.  Assur.   Comp.   4  whereby    such    a    determination    is 

Bro.  P.  C.  436,  Toml.  Ed. ;   1  Eq.  Ca.  sought,  will    hold.       See    Jones    v. 

Ab.  131 ;  Bensley  v.  Burdon,  9  Sim.  Jones,  3  Meriv.  161 ;  Jones  \.  Frost, 

&  Stu.  519.  3  Madd.  1;  S.C.I  Jac.  R.  466  (1). 

(/)  As  courts  of  equity  disclaim 

(1)  [Segrave  V.  Kirwan,  1  Beatty'sR.  163.  The  duty  of  chancery 
is  merely  to  construe  the  elfect  of  a  will.  lb.  It  is  not  competent  for 
a  court  of  chancery  to  i-et  aside  a  will  or  codicil  as  to  real  estate  on 
tlie  ground  of  fmud  or  incompetency  of  the  testator.  The  question 
should  be  determined  in  a  court  of  law  on  an  issue  from  chancery  of 
devisavit  vel  nan.  It  is  otherwise  as  to  a  will  of  personal  estate.  Ro- 
gersv.  Rogers,  on  appeal,  3  Wendell's  R.  503  ;  and  see  Cullon  v.  Ross, 
2  Paige's  C.  R.  369,  where  it  is  said,  that  the  court  of  chancery  has 
no  oriijinal  jurisdiction  to  try  the  validity  of  wills  of  personal  estate. 
The  jurisdiction  of  the  court  existing  only  in  case  of  an  appeal  from 
the  decision  of  the  surrogate. 

The  court  of  chancery  of  the  state  of  New-York  is  authorized  to 
take  proof  of  wills  lost.     2  R.  S.  67.] 

(2)  See  Smith's  Manual  of  Equity  Jurisprudence,  Introd.  sec.  1. 


146  DEMURRERS.  [ChAP.  II. 

Sy^in^Bu'lfport      If  an  accident  is  made  a  gronnd  to  give  juris- 

of  a  bir 
on  a  lo 
Mient, 


on^a  lost'^nstru-  diction  to  the  court  in  a  matter  otherwise  clearly 


cognizable  in  a  court  of  common  law,  as  the  loss 


[A  demurrer  to  a  bill  for  cause  that  the  complainant  has  a  leual  re- 
medy, will  not  be  entertained,  unless  that  remedy  appears  clear  and 
not  doubtful  or  difficult.  O'lirien  v.  Irwin,  l^'dg.  Lap.  &  Scho.  361  ; 
and  see  Reed  v.  Bank  of  Newburgh,  1  Paige,  215. 

Legal  rights  are  to  be  asserted  by  legal  means;  and  in  such  cases, 
courts  of  equity  never  lend  their  aid  when  equity  and  justice  do  not 
imperiously  demand  it.  Bo^ley  v.  M^Kinn,  7  Harris  &  Johns.  R.  160. 
Although  chancery  will  not  reverse  a  judgment  at  law,  nor  decide 
over  again  a  point  decided  by  a  court  of  law,  yet  it  will  hear  the  same 
subject  of  controversy,  upon  grounds  not  litigated  in  the  court  of  law, 
either  for  want  of  legal  testimony,  (which,  in  chancery,  may  be  sup- 
plied by  the  oath  of  the  party,)  or  because  it  was  a  subject  of  equity 
jurisdiction  and  not  admissible  at  law,  or  perhaps  for  other  causes  > 
and  perpetually  enjoin  a  judgmei.t.  And  this  too,  although  the  grounds, 
at  the  time  of  an  injunction,  may  be  considered  cognizable  at  law,  if 
if  they  were  not  so  considered  when  the  judgment  was  rendered  and 
the  bill  brought.  Dana  v.  Nelson,  1  Aiken's  (Vermont)  R.  252.  Af- 
ter a  cause  has  been  fully  heard  and  decided  at  law,  there  can  be  no 
relief  in  equity.  Terrel  v.  Dick,  1  Ca'l's  (Virginia)  R.  191  ;  and  see 
Moses  V.  Lewis,  12  Price's  R.  502.  Not  even  though  the  judge  may 
have  misapprehended  the  law.  Brickell  v.  Jones,  2  Hayward's  (North 
Carolina)  R.  367 ;  Marine  Ins.  Co.  of  Alexandria  v.  Hodgson,  7 
Cranch,  332. 

It  seems,  that  relief  will  be  given  against  a  mistake  of  the  attorney 
in  pleading  a  plea  which  dues  not  cover  the  defence.  MNeish  v. 
Stewart,  7  Cowen's  (New- York)  R.  474.  But,  query  this — see  Gra- 
ham V.  Siagg,  2  Paige's  C.  R.  321. 

A  party  who  had  a  judgment  against  him  at  law,  without  having 
had  notice  of  the  proceeding  which  led  to  it,  reimbursed  upon  his  hav- 
ing been  compelled  to  pay  too  much.  Taylor  v.  Wood^s  executors,  2 
Hayw.  332.  Excessive  damages  at  law  are  no  grounds,  in  an  ordinary 
case,  for  relief  in  equity.  Reed  v.  Clark,  4  Monroe's  (Kentucky)  R. 
19.  The  neglecting  a  defence  at  law,  gives  the  party  no  right  in 
equity.  Drewry  v.  Barnes,  3  Russ.  94 ;  More  v.  Bagley,  1  Breese's 
(Illinois)  R.  60;  Beaugenonv.  Turcotte,  lb.  126;  Hubbard  v.  Hobson, 
lb.  147;  Greenup  v.  Brown,  lb.  193;  Loud  v.  Sergeant,  1  Edwards' 
V.  C.  R.  164. 

Where  a  cause  has  been  argued  in  a  court  of  law,  on  a  case  settled 
and  judgment  rendered,  chancery  will  not  interfere  to  have  the  case 


S.  II.  p.  I.]  DEMURRERS.  146 

or  want  of  an  instrument  on  which  the  plaintiff's  title 

is  founded,  the  court  will  not  permit  a  bare  sugges-     [124] 

tion  in  a  bill  to  support  its  jurisdiction  ;  but  require 

a  degree  of  proof  of  the  truth  of  the  circumstance  on 

which  it  is  sought  to  transfer  the  jurisdiction  from 

a  court  of  common  law  to  a  court  of  equity  (g), 

ig)   Whitchurch  V.  Golding,  2  P.  Wms.  541 ;  3  Atk.  132. 

amended  and  re-argued.  Holmes  v.  Remsen,  7  J.  C.  R.  286.  A  judg- 
ment cannot  be  impeached,  except  for  fraud  or  accident  (unmixed  with 
any  fault  or  negligence  in  the  complainant  or  his  agent) ;  nor  can  its 
consideration  be  inquired  into.  French  v.  Sholwell,  6  J.  C.  R.  235; 
Marine  Ins.  Co.  of  Alexandria  v.  Hodgson,  7  Cranch,  332.  It  will 
never  interfere  with  the  judgment  on  the  ground  of  irregularity.  The 
record  of  the  judgment  and  execution  and  title  under  them  are  a  con- 
clusive bar  in  equity.  Sholienkirk  v.  Wheeler,  3  J.  C.  R.  275.  S.  P. 
De  Rfiimer  v.  Caniillon,  4  lb.  85  ;  Hau-ley  v.  Mancius,  7  lb.  174. 

A  bill  cannot  be  filed  to  recover  the  amount  of  a  total  loss  on  a 
policy  of  insurance  on  the  ground  that  the  policy  had  been  assigned  to 
the  complainants  by  the  assured,  and  that  the  assurers  refused  to  pay. 
A  demurrer  would  hold.  Carter  v.  United  Insurance  Co.,  1  J.  C.  R. 
463.] 

After  defendant  has  answered  and  submitted  to  the  jurisdiction  it  is 
too  late  to  object  to  the  jurisdiction  on  ground  of  adequate  and  com- 
plete remedy  at  law.  If  the  court  has  jurisdiction  of  the  subject  mat- 
ter in  dispute,  any  other  objection  to  the  jurisdiction  should  be  made 
without  delay  and  at  the  earliest  opportunity.  First  Congregational 
Society  in  Raynham  et  al.  v.  The  Trustees  of  the  Fund,  cf-c.  in  Rayn- 
ham,  23  Pickering  R.  Mass.  153,  148,  citing  Ludlow  v.  Simond,  2 
Caines'  Cas.  46. 

An  objection  to  the  jurisdiction  on  ground  that  complainant  has  a 
perfect  remedy  at  law  should  be  by  demurrer  or  in  tlie  answer.  If  im- 
proper and  untrue  allegations  are  insertpd  in  a  bill  for  the  purpose  of 
preventing  a  demurrer  and  to  give  apparent  jurisdiction  to  a  court  of 
equity,  the  defendant  may  by  his  answer  deny  these  allegations  and 
insist  that  as  to  the  other  matters,  the  complainant  has  a  remedy  at 
law,  although  such  objection  in  the  answer  will  not  save  the  necessity 
of  a  full  discovery  as  to  all  the  matters  charged  in  the  bill,  it  will  at 
the  hearing  bo  sufficient  to  prevent  complainant  from  obtaining  his 
relief.  Where  objection  is  made  in  answer,  complainant  proceeds  at 
peril  of  costs  if  objection  is  sustained  at  hearing.  Fulton  Bank  v. 
New- York  cf-  Sharon  Canal  Co.,  4  Paige  R.  131-2,  127. 


146  DEMURRERS.  [ChAP.  IL 

})y  an  affidavit  of  the  plaintiff  annexed  to  and  filed 
-  with  the  bill.  Thus  if  a  bill  is  brought  to  obtain 
the  benefit  of  an  instrument  upon  which  an  action 
at  law  would  lie,  alleging  that  it  is  lost,  and  that 
the  plaintiff  cannot  therefore  have  remedy  at  law, 
an  affidavit  of  the  loss  must  be  annexed  to  the  bill,  or 
a  demurrer  will  hold  (/t). 
or  a  bill  for  a      So  iu  the  case  of  a  bill  for  discovery  of  any  in- 

discovery  of  an  .,...,  i 

instrument.  strumcut,  suggcstmg  that  It  IS  m  the  custody  or 
power  of  the  defendant,  and  praying  any  relief 
which  might  be  had  at  law  if  the  instrument  was 

147  in  the  hands  of  the  plaintiff,  an  affidavit  must  be 
annexed  to  the  bill  that  the  instrument  is  not  in  his 
custody  or  power,  and  that  he  knows  not  where  it 
is,  unless  it  is  in  the  hands  of  the  defendant  (2). 
But  if  the  relief  sought  extends  merely  to  the  de- 
livery of  the   instrument,  or  is  otherwise  such  as 

(h)  See  Walmsley  v.  Child,  1  Ves.  342 ;  Hook  v.  Dorman,  1  Sim.  & 
Stu.  227(J). 

(1)  As  where  the  bill  was  for  discovery  of  the  contents  of  a  lease 
and  for  partition,  no  affidavit  was  annexed  that  complainant  had  not 
the  lease  or  counterpart  in  his  custody  or  power,  it  was  held  that  de- 
fendant is  bound  only  to  look  to  the  copy  of  bill  served  on  his  solicitor 
and  if  it  do  not  contain  the  requisite  affidavit  or  verification  to  give 
the  court  jurisdiction,  he  may  demur  on  that  ground.  Lansing  v. 
Pine,  4  Paige's  R.  641,  639. 

[See  the  form  of  such  a  deinurrer,  Willis,  431.  And  see,  as  to  the 
principle,  Livingston  v.  Livingston,  4  J.  C.  R.  294  ;  and  see  Laight  v, 
Morgan,  on  appeal,  I  J.  C.  419;  S.  C.  2  C-  C.  E.  344;  Lynch  v.  Wil- 
lard,  6  J.  C.  R.  342,  346;  and,  as  to  the  sufficiency  of  such  an  affida- 
vit, Ls  Roy  v.  Veeder,  on  appeal,  1  J.  C.  417 ;  S.  C.  2  C.  C.  E.  175. 

When  a  bill  is  filed  for  a  discovery  and  also  for. relief,  the  bill  being 
good  for  the  former  purpose,  without  affidavit,  but  not  for  the  latter,  it 
will  be  retained  as  for  the  sound   part;  and  the  defendant  ought  to 
answer  the  part  which  is  good,  and  demur,  if  he  thinks  proper,  to  the- 
other.     Laight  v.  Morgan,  2  Caiues'  Ca.  344;  S.  -C.  1  J.  C.  429.] 

(2)  [Laighl  V.  Morgan,  1  C.  C.  E.  345;  S.  C.  1  J.  C.  R^  9.] 


S.  II.  p.  L]  DEMURRERS.  147 

can  only  be  given  in  a  court  of  equity,  such  an  affi- 
davit is  not  necessary  (i).  It  is  also  unnecessary 
in  the  case  of  a  bill  for  discovery  of  a  cancelled  in- 
strument, and  to  have  another  deed  executed  (k)  ; 
for  if  the  plaintiff  had  the  cancelled  instrument  in 
his  hands,  he  could  make  no  use  of  it  at  law,  and 
indeed  the  relief  prayed  is  such  as  a  court  of  equi-  [125] 
ty  only  can  give. 

A  suggestion  that  the  evidence  of  the  plaintiff's 
demand  is  not  in  his  power  is  essential  to  a  bill 
under  these  circumstances  ;  and  if  it  is  defective 
in  this  point,  the  defendant  may  by  demurrer  al- 
lege that  there  is  no  such  charge  in  the  bill  (I). 

Where  a  right  of  action  at  law  was  in  a  trustee,  ^^^lere  a  tnutce 

o  refuses  to  allow 

and  the  person  beneficially  entitled  filed  a  bill  for  ^ZX^^Xgen 

relief,  suggesting  a  refusal  by  the  trustee  to  suffer  name"  '" 

an  action  to  be  brought  in  his  name,  a  demurrer 

has  been  allowed  (m)  ;  and  if  a  mere  suggestion 

to  this  effect  would  support  a  bill,  the  jurisdiction 

in   many  cases  might  improperly  be  transferred 

from  a  court  of  law  to  a  court  of  equity. 

By  demurring  to  a  bill  because  the  plaintiflTmay 
have  remedy  at  law,  the  defendant  will  not  be  de- 
barred of  relief  in  equity  upon  another  bill,  if  the  j^4g 
plaintiflf  in  the  first  bill  should  proceed  at  law  and 
recover  (n). 

(i)    Whitwortk    v.  Guiding,  Mos.  (m)     Ghettoff    v.     Land.      Axuur. 

192;  NelB.  Rep.  78;  Jnon.  3  Atk.  17.     Chmp.  4  Brown,  P.  C.  436,  Toml. 

(A-)   King  V.  King,  Mos.  192.  Ed.     And  see  1  Atk.  547  (2). 

■   (/)  3  P.  Wins.  395  (1).  (n)   Humphreys  v.  Humphreys,  3 

P.  Wms.  395. 

(1)  I  See  the  form  of  such  a  demurrer,  Willis,  433.] 

(2)  [b'ee  the  form  of  such  a  demurrer,  Wiliii?,  434;  and  note  (g) 
there.] 


148  DEMURRERS.  [ChAP.  II. 

Mm"o"therc^o'urt      Thls  objcction  to  a  bill  is  not  confined  to  cases 

than   a  court  of  'ii*  a  f  i  t/^  i 

common  law  haa  coffnizable  in  couits  oi  common  law.     It  any  other 

iurisdiction.  ..■,..  ., 

court  of  ordinary  jurisdiction,  as  an  ecclesiasti- 
cal court,  court  of  admiralty,  or  court  of  prize,  is 
competent  to  decide  upon  the  subject,  a  demuiTer 
will  equally  hold  (1)  ;  except  that  the  courts  of 
equity  have  in  the  case  of  tithes,  and  in  the  dispo- 
sition of  the  effects  of  persons  dying  testate  or  in- 
[126]  testate,  assumed  a  concurrent  jurisdiction  with  the 
ecclesiastical  courts,  as  far  as  the  jurisdiction  of 
those  courts  extends ;  and  indeed  the  courts  of 
equity  in  many  of  these  cases  can  give  more  com- 
plete remedy  than  can  be  afforded  in  the  ecclesi- 
astical courts,  and  in  some  cases  the  only  effectual 
remedy. 
rt!e  judgment?  Courts  of  cquity  will  also  lend  their  aid  to  en- 
dL^y'^'/uriadk-  force  the  judgments  of  courts  of  ordinary  jurisdic- 
diction  (2) ;  and  therefore  a  bill  may  be  brought  to 
obtain  the  execution  or  the  benefit  of  an  elegit  (o), 
or  di  fieri  facias  {p),  when  defeated  by  a  prior  title, 
either  fraudulent,  or  not  extending  to  the  whole  in- 
terest of  the  debtor  in  the  property  upon  which  the 
judgment  is  proposed  to  be  executed.  In  some 
cases,  where  courts    of  equity  formerly  lent  their 

149  aid,  the  legislature  has  by  express  statute  provided 

(0)  Lewkener  v.  Freeman,  Pr.  in  (/?)  Smithier  v.  Lewis,  1  Vern. 
Cha.  105 ;  Higgins  v.  York  Build.  399 ;  Balch  v.  Wastall,  1  P.  Wixw. 
Comp.  2  Atk.  107  ;  Stilemav  v.  Ash-     445. 

down,  2  Atk.  608. 

(1)  [See  the  form  of  such  a  demurrer,  Willis,  467;  and  note  (a) 
there.] 

(2)  See  note  to  p.  132.  Infra  p.  [187].  [The  court' of  Chancery 
of  the  state  of  New-York  may  enforce  contribution  between  owners 
of  lands  subject  to  judgment.     2  Revised  Statutes,  376.] 


S.  II.  p.  I.]  DEMURREUS.  149 

for  the  relief  of  creditors  in  the  courts  of  common 
law  ;  and  consequently  rendered  the  exertion  of 
this  jurisdiction  in  such  cases  unnecessary.  In 
any  case  to  procure  relief  in  equity,  the  creditor 
must  show  by  his  bill  that  he  has  proceeded  at  law 
to  the  extent  necessary  to  give  him  a  complete 
title.  Thus  in  the  cases  alkided  of  an  elegit  and 
fieri  facias  he  must  shoWthat  he  has  sued  out  the 
writs  the  execution  of  which  is  avoided,  or  the  de- 
fendant may  demur  {q)  ;  but  it  is  not  necessaiy  for 
the  plaintiff  to  procure  returns  to  those  writs  (r). 

The  judgments  of  the  ecclesiastical  courts  giv-     [127] 
ing  civil  rights   will  receive  the  same  aid  from  a  menteoftVeo- 

.  clesiaetical 

court  of  equity  as  those  of  the  courts  of  common  '"''^'^^ 
law  (3) ;  and  therefore  where  a  person  against 
whom  there  was  a  sentence  in  an  ecclesiastical 
court  at  the  suit  of  his  wife  for  alimony,  intended 
to  avoid  the  execution  of  the  sentence  by  leaving 
the  kingdom,  the  court  of  chancery  entertained  a 
bill  for  a  writ  of  ne  exeat  regno,  to  restrain  him 
from  leaving  the  kingdom  until  he  had  given  se- 
curity to  pay  the  maintenance  decreed  (s). 

(^)  (1)  Angell  V.  Draper,  1  Vern.  But  see  Bnlch  v.  Wastall,  1  P.  Wms. 

338 ;  Shirley  v.   Walts,  3  Atk.  200  445. 

(2).  (s)  Read  v.   Read,  1  Ca.  in  Cha. 

(r)  Manningham  \.  Lord  Baling-  115;  Sir  Jeroin.  Smithson's  case,  2 

iroAre,  Elegit,  Easter,  1777,  in  Chan.;  Ventr.    345;    Anon.    2    Atk.    210; 

Kennard  v.  Moore,  in  Clian.  June  23,  Ambl.    76  ;    Shaftoe    v.    Shajtoe,   7 

1756;  2  Eq.  Ca.  Ab.  251;  Kin<r  v.  Ves.   171;  Dawson  v.  Dawson,   ib. 

M«risW,  3  Atk.  192 ;  -S.  C.  ib.  200.  173;  Oldham  v.   Oldham,  ib.  410; 

Haffey  v.  Haffey,  14  Ves.  261. 

(1)  [See  the  form  of  such  a  demurrer,  Willis,  470;  and  also  note 
(b)  thorp,  and  notes  to  pige  115,  antp.'\ 

(2")  [t/.  >S.  V.  Stnrges,  1  Paine's  C.  C.  R.  525 ;  and  see  note  to  page 
115,  anteSl 

(3)  [A  creditor  by  decree  in  chancery,  upon  the  return  of  his  exe- 


149  DEMURRERS.  [ChAP.  IL 

2.  Sometimes  a  party,  by  fraud,    or  accident, 

150  or  otherwise,  has  an  advantage  in  proceeding  in  a 

2.  To  prevent  the  ^  .        .      ,.       .  i   •    , 

other  courts      court  01  orduiaiy  jurisdiction  which  must  necessa- 

Irom  being  mane  •'    •* 

^justice r^"'"^  rily  make  that  court  an  instrument  of  injustice  ; 
and  it  is  therefore  against  conscience  that  he 
should  use  the  advantage  (1).  In  such  cases,  to 
prevent  a  manifest  wrong,  courts  of  equity  have 
interposed,  by  restraining  the  party  whose  con- 
science is  thus  bound  from  using  the  advantage  he 
has  improperly  gained;  and  upon  these  principles 
[128]  bills  to  restrain  proceedings  in  courts  of  ordinary 
jurisdiction  are  still  frequent,  though  the  courts  of 
common  law  have  been  enabled,  by  the  assistance, 
of  the  legislature,  as  well  as  by  a  more  liberal  ex- 
ertion of  their  inherent  powers,  to  render  applica- 
tions of  this  nature  to  a  court  of  equity  unneces- 
sary in  many  cases  where  formerly  no  other  reme- 
M  in  cases  of  dy  was  providcd.  Thus  if  a  deed  is  fraudulently 
accwent,andop.  obtained  without  consideration,  or  for  an  inade- 
quate consideration,  or  if  by  fraud,  accident  or 
mistake  (2),  a   deed  is  framed  contrary  to  the  in- 

cution  unsatisfied,  is  entitled  to  the  same  relief  against  the  equitable 
interests  and  property  of  his  debtor  as  a  creditor  by  a  judgment  at  law. 
Clarkson  v.  De  Peyster,  3  Paige's  C.  R.  320.  J 

(1)  See  note  to  p.  132. 

(2)  [  Yellnn  v.  Hau-kms,  1  J.  J.  Marshall's  R.  2 ;  Parcels  v.  Gohegan, 
lb.  133  ;  Burdett  v.  Simons,  3  lb.  192;  Hyne's  Representatives  v.  Camp- 
bell, 6  Monroe's  R.  287  ;  Baugh  v.  Ramsey,  4  lb.  157,  158  ;  Barrett  v, 
Floyd,  3  Call'ri  R.  4'  5 ;  Roserelt  v.  Fulton,  2  Cow  en's  R.  129;  Lyon 
V.  Richmond,  2  J.  C.  R,  51  ;  Gillespie  v.  Moon,  lb.  585.  But  if  a  de- 
fence has  been  mad6  at  law  and  the  consideration  investigated,  equity 
will  not  interfere.  Yelton  v.  Nankins,  sitpra.  It  cannot  interfere 
further  than  to  correct  a  mistake  in  the  amount  of  a  judgment  obtained 
without  fraud.  lb.  If  a  note  is,  by  mistake,  executed  for  loo  large  a  sum, 
it  is  a  ground  for  relief  in  equity.  Money  paid  by  mistake,and  as  ex- 
cessive interest,  may  be  recovered  back  by  bill.     Ashbrook  v.  WatkinSi, 


presaion. 


S.  II.  p.  I.]  DEMURRERS.  150 

tention  of  the  parties  in  their  contract  on  the  sub- 

3  Monroe's  R.  82.  A  judgment  which  has  been  obtained  through  mis- 
take of  the  defendant  at  law  will  not  be  relieved  against,  if  proper  steps 
could  have  been  taken.  Farmers^  Bank  v.  Vanmelir,  4  Randolph's  R. 
553 ;  Inhabitants  of  Essex  v.  Berry,  2  Vermont  R.  161.  Equity 
allows  bills  where  defence  was  not  known  to  party  until  after  judg' 
-ment.  Hubbard  v.  Hobson,  1  Breese's  (Illinois)  R.  147  ;  Foster  v. 
Wood,  6  J.  C.  R.  87;  but  see  Fish  v.  Lane,  2  Hayw.  342.  If  by 
mistake  or  the  un^kilfulness  of  the  drawer,  a  bond  be' not  drawn  accord- 
ing to  the  understanding  of  the  parties,  the  surety  of  the  obligee  shall 
be  subjected  in  equity  as  far  as  he  understood  himself  to  be  subject. 
Hason's  administrators  v.  Pitman,  lb.  331.  If,  through  mistake,  a  seal 
is  not  put  to  a  bond,  chancery  will  supply  the  defect.  Montville  v. 
Haughton,  7  Day's  R.  543.  Where  the  intention  is  manifest,  chan- 
cery will  always  relieve  against  mistakes  in  all  agreements.  Wiser 
V.  Blichly,  1  J.  C.  R.  607,  It  must  have  clear  and  satisfactory  proof 
of  the  mistake  and  of  the  real  ageement  between  the  parties.  Lyman 
V.  U.  S.  Ins.  Co.,  2  J.  C.  R.  630;  S.  C.  on  appeal,  17  J.  R.  373;  Ex. 
ecutors  of  Gelman  v.  Beardsley,  2  J.  C.  R.  274.  Harrison  v.  Jameson, 
3  lb.  232.  When  a  seal  or  the  signature  of  a  person  has,  without 
competent  authority,  been  affixed  to  a  deed,  equity  may  grant  the  party 
relief  against  the  deed,  on  the  ground  either  of  fraud  or  quia  timet. 
Cummins  v.  Kennedy,  4  lb.  64.  Where  an  aged  man  conveys  his 
properly  to  relatives  on  consideration  of  living  with  him  and  they 
abandon  him,  the  deed  will  be  set  aside.  Jenkins  v.  Jenkins,  3  Mon- 
roe, 329.  Bond  of  drunken  man  set  aside.  King's  ExWs  v.  Bryant's 
Ex'rs,  2  Hayw.  394.  A  judgment  or  decree  obtained  by  fraud  may 
be  set  aside  in  equity.  Williams  v.  Fowler,  2  J.  J.  Marshall's  R.  405. 
A  forged  deed  will  be  ordered  to  be  delivered  up  and  cancelled,  Leigh 
V.  Everharts'  Ex'rs,  4  lb.  380.  Has  general  power  to  order  a  deed 
to  be  given  up.  Ex'rs  of  Ward  v.  Ward,  1  Hayw.  R.  226.  Jf  it  is 
too  uncertain  as  to  the  estate  granted,  the  court  can  set  it  aside.  Pearse 
V.  Owens,VQ.  234.  Tne  general  principal  of  a  court  of  equity  is,  that 
a  bill  in  equity  may  be  filed  for  the  delivering  up  of  an  instrument 
which  cannot  be  enf  )rced  at  law,  in  order  that  the  complainant  may 
not  be  harassed  by  vexatious  proceedings  at  law.  Grover  v.  Hugell, 
3  Russ.  434.] 

As  to  mistakes  under  an  ignorance  of  law,  and  the  power  of  the 
court  to  relieve,  Ignoranlia  legis  neminem  excusal  is  the  general  rule 
in  equity  as  at  law.  It  has  e.xceptions  but  it  seems  not  well  settled. 
American  cases  adhere  to  it  from  danger  of  opening  a  door  for  so  com- 
mon a  pretence.  The  courts  do  not  relieve  parties  from  acts  and  deeds 
fairly  done  on  a  full  knowledge  of  facts  though  under  mistake  of  law. 


150  DEMURRERS.  [ClIAP.  II. 

ject,  the  forms  of  proceeding  in  the  courts  of  com- 
mon law  will  not  &^dmit  of  such  an  investigation 
of  the  matter  in  those  courts  as  will  enable  them 
to  do  justice.  The  parties  claiming  under  the 
deed  have  therefore  an  advantage  in  proceeding  in 
a  court  of  common  law  which  it  is  against  con- 
science that  they  should  use  ;  and  a  court  of  equi- 
ty will  on  this  ground  interfere  to  restrain  pro- 
ceedings at  law  until  the  matter  has  been  properly 


Many  of  the  cases  where  exceptions  to  the  rule  have  been  admitted, 
are,  mistake  of  facts  as  well  as  law  or  some  suppression  of  the  truth, 
fraud,  or  contrivance  in  the  party.  Garwood  v.  Administrators  of  El- 
dridge,  1  Green's  C.  R.  150,  145. 

If  this  court  can  relieve  against  a  mistake  in  law  in  any  case  where 
the  defendant  has  been  guilty  of  no  fraud  or  unfair  practice,  which  at 
least  is  very  doubtful,  it  must  be  a  case  in  which  the  defendant  has  in 
reality  lost  nothing  whatever  by  the  mistake  and  where  the  parties  can 
be  restored  to  the  same  situation,  substantially,  in  which  they  were  at 
the  time  the  mistake  happened.     Crosier  v.  Acer,  7  Paige's  R.  143,  137. 

In  Ohio,  it  was  held  on  a  bill  of  review  to  reverse  a  judgment  of  the 
supreme  court  of  Fairfield  county,  that  mistake  of  law  will  be  cor- 
rected in  equity,  as  where  an  instrument,  by  a  clear  mistake  of  parlies 
— an  error  of  opinion — as  to  the  legal  effect  of  the  words  used,  fails 
to  carry  out  their  intention.  Though  such  case  is  a  mistake  of  law, 
complainant  has  a  remedy  in  equity  on  the  broad  principle,  that  in 
this  peculiar  class  of  cases,  such  mistakes  are  relievable.  A  sheer 
mistake  of  law,  where  an  instrument  fails,  to  carry  out  the  intention 
of  the  parties  by  reason  of  a  mistake  in  the  effect  of  the  terms  em- 
ployed by  the  draftsman,  equity  will  relieve.  Etanis  v.  Strode''s  Ad' 
minisiralor  ,11  Ohio  R.  487,  480. 

In  Massachusetts  the  power  of  a  court  of  equity  to  reform  or  rectify 
contracts,  however  important  and  useful  it  may  be  in  the  administra- 
tion of  justice,  is  there  held  clearly  not  within  the  limited  jurisdiction 
of  their  court.  Hence  where  plaintiffs  offered  parol  evidence  explana- 
tory of  the  true  meaning  of,  and  to  show  that  the  written  agreement 
was  erroneously  drafted  by  mistake  of  the  attorney  who  drew  it,  if  its 
true  construction  be  such  as  contended  for  by  defendant,  the  evidence 
was  deemed  inadmissible  and  was  rejected.  Leach  v.  Leach,  18  Pick. 
R.  (Mass.)  73,  68;  and  Dwight  v.  Pomeroy  et  al.,  17  Mass.  R.  303: 
Gould  V.  Gould,  5  Metcalf  R.  276,  274,  528. 


S.  II.  p.  I.]  DEMURRERS.  150 

investigated,  and  if  it  finally  appears  that  the  deed 

has  been  improperly  obtained,  or  that  it  is  contrary 

to  the  intention  of  the   parties    in  their   conti'act,  151 

will   in    the   first   case    compel  the    delivery    and 

cancellation  of  the  deed,  or  order  it  to  be  deposited 

with  an  officer  of  the  court ;    and    will    compel   a 

re-conveyance    of  property    if  any  has   been    so 

conveyed  that  a  re-conveyance    may  be  necessary 

(t)  ;  and  in  the  second  case  will  either  rectify  the 

deed  according  to  the  intention  of  the  parties,  or     [129] 

will  restrain  the  use  of  it  in  the  points  in  which  it 

has  been  framed  contrary    to,  or    in    which  it  has 

gone    beyond,    their    intention    in    their     original 

contract  (i^).    The  instances  of  the  exercise  of  the 

jm'isdiction  of  courts  of  equity  in  these  cases,  and 

especially  in  the     case  of  a    deed    fraudulently 

obtained,  are  numerous X^cc).     On  the   ground  of 

(t)  See  on  this  subject,  Bishop  of  v.  Royal  Exchange  Assur.  Camp.  1 

Winchester  v  Fournier,  2  Ves.  445 ;  Ves.  317  ;  Rogers  v.  Earl,  Dick.  294; 

Ba<es  V.  Grfffes,  2  Ves.  Jr.  287;  Prfn-  Marquis  of    Townshend  .v.   Stan- 

gle  V.  Hodgson,  3  Ves.  617  ;  Wright  groom,  6  Ves.  328;   Clowes  v.  Hig- 

V.  Proud,   13    Ves.    136;     Ware  v.  ginson,  1  Ves.  &  Bea.  524;  Bcau- 

Horwood,  14  Ves.  28  ;  Hug.venin  v.  mont  v.   Bramley,  1   Turn.  R.  41 ; 

Baseley,   14    Ves.   273;     Willan   v.  Ball.  v.  Slorie,  1   Sim.  &  Stu.  210  ; 

Willan,    16    Ves.    72;     Murray   v.  2  Sim.  &  Stu.  178. 

Palmer,  2  Sch.  &  Lefr.  474 ;  Walk-  (x)  It  has  been  sometimes  doubted 

er\.  Symonds,  3  Swaust  1;  Gordon  whether  the  court  ought  to  compel 

V.  Gordon,  3  Svvanst.  400  ;  Wood  v.  the  delivery  and  cancellation  of  an 

Abrey,  3  Madd.  417;  Tweddell  v.  instrument  which  ought  not  to  be  en- 

Tweddell,  1  Turn.  R.  1  (1).  forced,  and  whether  the  more  proper 

(w)  See  2  Atk.  33,  203  ;  Henhle  course  would  not  be  to  order  a  per- 

(1)  [And  see  the  singular  case  of  Nnrtonv.  Reilly,  in  the  l?t  vol. of 
the  Collectanea  Juridica,  and  the  bold  npinion  of  Chancellor  Nurthing- 
ton — an  opinion  which  did  honor  to  his  head  and  heart.  There,  a  bill 
was  filed  for  relief  against  a  deed  obtained  under  circumstances  of 
fanatical  delusion.  Also,  Apthorpe  v.  Comstock,  1  Hopk.  143  ;  8  Cow. 
386;  2  Paige,  482;  Thompson  v.  Graham,  1  Paige^  384.] 


152  DEMURRERS.  [ChAP.  II. 

mistake  the  courts  of  equity  have  also  frequently 
interfered  in  a  variety  of  instances,  and  particularly 
[130]  in  the  cases  of  defective  securities  for  money  {y), 
and  of  marriage  settlements  founded  on  previous 
articles,  where  the  settlement  has  been  contrary  to 
the  evident  intention  of  the  parties  in  the  articles  (z). 
The  courts  of  equity  will  interfere  upon  the  same 
grounds  to  relieve  against  instruments  which 
destroy,  as  well  as  against  instruments  which 
create,  rights;  and  therefore  will  prevent  a  release 
which  has  been  fraudulently  or  improperly  obtain- 
ed from  being  made  a  defence  in  an  action  at 
law.  And  where  a  fine  and  non-claim  were  set  up 
as  a  bar  to  an  ejectment  by  an  heir  at  law,  who 

petual   injunction  to  restrain  the  use  ment  the  court  ought  to  take  the  cus- 

of   the  instrument.      See  1  Ves.  Jr.  tody ;  and  in  such  a  case  the  instru- 

284  ;    Ryan  v.  Mackmath,  3  Bro.  C.  ment  has  been  generally  ordered  to 

C.  15,  and  the  cases  there  cited,  and  be   deposited   with   an    officer  of  the 

Mason  v.  Gardiner,  4  Bro.  C.  C.  436.  court.       Bishop   of    WiiiAester   v. 

But  if  the   instrument  ought  not  to  i^owrnier,  2  Ves.  445,  and  cases  there 

be  used,  it  is  against  conscience  for  cited  (1). 

the  party  holding  it  to  retain  it,  as  he  (y)   Sims  v.  Urry,  2  Ca.  in  Chan, 

can  only  retain  it  for  some   sinister  225  ;  <S.  C.  Rep.  temp.  Finch,  413, 

purpose;  and  in  the  case  of  a  nego-  and  2  Freem.  16;    Burgh  v.  Fran- 

tiable   instrument  it  may  be  used  for  cis,  1   Eq.  Ca.  Ah.  320 ;    Taylor  v. 

a  fraudulent  purpose,  to  the  injury  of  Wheeler,  2  Vern.  564;  Jennings  v. 

a  third  person.     See  Bromley  v.  Hoi-  Moore,  2  Vern.   609  ;    Bothomly  v. 

land.  Coop.  R.  9  ;  11  Ves.  535;  17  Lord  Fairfax,  1  P.  Wms.  334  (2>. 
Ves.  112;  1  Ves.  &  Bea.  244;  Wynne         (z)  On  this  subject,  see  Randall 

V.  Callandar,  1    Russ.   R.   293  ;  and  v.  Willis,  5  Ves.   262  ;    Taggart  v. 

see  2   Swanst.  157,  note,  where   the  Taggart,  ISch.  Sc  heir.  S4;  Black- 

leading    authorities  on   this    subject  hum  v.  Stables,  2  Ves.  &  Bea.  367  ; 

,are   collected.     Of  a   forged  instru-  1  Turn.  R.  52. 


.(1)  And  see  Apihorp  v.  Comstock,  2  Paige's  C.  R.  482. 
(2)  Phdnix  Fire  Ins.  Co.  v.  Gurn'e,  1  Paige's  C.  R.  273.     Or,  es. 
pecially  where  the  mistake  arose  from  confiding  in  the  representations 
of  the  adverse  party.     Rhode  Island  v.  Massachusetts,  15  Peters  271, 
233. 


S.  II.  p.  I]  DE3VIURRERS.  152 

had  filed  a  bill  in  equity  before  the  time  had  run 

on  the  fine,  for  discovery  of  title  deeds,  and  for 

other  purposes,  with  a  view  to  try  his  title  at  law, 

the  house  of  lords  upon  an  appeal  restrained  the 

netting  up  the  fine  («).     In  many  cases  of  accident, 

as  lapse  of  time,  the    courts  of  equity  will    also  153 

relieve  against  the  consequences  of  the  accident 

in  a  court  of  law.     Upon  this  ground  they  proceed 

in  the  common  case  of  a  mortgage,  where  the  title 

of  the  mortgagee  has  become  absolute  at  law  upon 

default  of  payment  of  the  mortgage-money  at  the 

time  stipulated  for  payment  {d). 

As  the  courts  of  equity  will  prevent  the  unfair  use  [131] 
of  an  advantage  in  proceeding  in  a  court  of  ordinary 
jurisdiction  gained  by  fraud  or  accident,  they  will 
also,  if  the  consequences  of  the  advantage  have 
been  actually  obtained,  restore  the  injured  party  to 
his  rights.  Upon  this  ground  there  are  many 
instances  of  bills  to  prevent  the  effect  of  a  judgment 
at  law,  and  to  obtain  relief  in  equity  where  it  was 
impossible.by  any  means  to  have  the  matter  proper- 
ly investigated  in  a  court  of  law  ;  or  where  the  matter 
might  be  so  investigated,  to  bring  it  again  into  a 
course  of  trial  (r).(l). 

Bills  of  the  latter  description  or  (as  they  are 

(a)  PincU  V.  Thornycrofl,  1  Bro.  Gyles,  2  Vern.  232  ;   Tilly  v.  Wkar- 

C.  C.  289.  ton,  2  Vern.  378 ;  S.  C.  ib.  419 ;  1 

(h)  See  7  Ves.273  ;  2  Sch.  &-Lefr.  Eq.  Ca.  Ab.  377,  378  ;  Countess  of 

685.  Gainsborough  v.  Gifford,  2  V.  Wms. 

(c)   Curtess  v.  Smalridge,  1   Ca.  424  ;  Hankey  v.  Vernoji,  2  Cox's  R. 

in  Clia.  43  ;  3  C.  Uep.  17  ;  Robin-  12 ;  2  Ves.  Jr.  135  (1). 
son  V.  Bell,  2  Vern.  14G  ;    Thomas  v.  • 

(1)  [See  the  form  of  a  bill,  Willis,  118.] 

(2)  {Saunders  v.  Jennings,  J.  J.  Marshall's  R.  613.] 

15 


153  DEMURRERS.  [ClIAP.  II. 

usually  called)  bills  for  a  new  trial,  have  not  been 
of  late  years  much  countenanced  (1).  In  general, 
it  has  beeen  considered  that  the  ground  for  a  bill 
to  obtain  a  new  trial  after  judgment  in  an  action  at 
law  must  be  such  as  would  be  ground  for  a  bill 
of  review  of  a  decree  in  a  court  of  equity  upon 
discovery  of  new  matter  (d);  and  therefore  where 

154  judgment  has  been  obtained  against  one  underwriter 
on  a  policy  of  insurance,  a  point  of  law    being 

.  adjudged  on  a  case  reserved  in  favour  of  the 
plaintiff  at  law  ;  and  afterwards  in  other  actions  on 
the  same  policy,  against  other  underwriters, 
judgment  was  given  for  the  defendants  on  the  same 
point,  the  first  judgment  being  deemed  to  have 
[132]  been  clearly  erroneous  ;  a  demurrer  was  allowed  to 
a  bill  brought  by  the  defendant  in  the  first  action 
for  a  new  trial  (2).  No  new  matter  of  fact  had  been 
discovered  ;  and  if  this  bill  hrd  been  sustained,  a 
similar  bill  might  have  been  filed,  whenever  a 
court  of  law  had  pronounced  an  erroneous 
judgment  which  could  not  be  reversed  by  a  writ 
of  error  (e).  So  if  the  defendant  in  an  action  at 
law  submits  to  go  to  trial  without  filing  a  bill  in 
equity  for  a  discovery  of  evidence,  and  after  verdict 
against  him  attempts  to  obtain  that  discovery  as 
a  ground  for  a  new  trial,  the  court  of  equity  will 
not  countenance  such  a  proceeding  when  there   is 

(d)  1  Ca.  in  Cha.  43.  (e)   Gibson  v.  Bell,  on  demurrer, 

30  July,  1800,  in  Chan. 


(1)  [See  the  form  of  a  bill  for  a  new  trial,  Willis,  167.] 

(2)  [See  the  form  of  a  demurrer,  Willis,  436,  page  186,  post,  and 
notes  there.] 


S.  II.  p.  I.]  DEMURRERS.  154 

no  fraud  in  the  conduct  of  the  plaintiff  at  law(/)  (1). 

Cases  of  oppression,  where  a  man  has  taken  ad- 
vantage of  the  situation  of  another  to  obtain  from 
him  an  unreasonable  contract,  have  been  the  sub- 
jects of  relief  on  the  same  ground  (g)  (2) ;  and  in  1^5 
some  cases  the  courts  of  equity  have  rescinded 
improper  contracts  on  the  grounds  of  general  poli- 
cy, and  to  prevent  a  public  inconvenience,  as  in  the 
case  of  securities  given  for  marriage-brokage  (Ii), 
or  for  the  obtaining  of  public  offices,  or  employ- 
ments (i)  (3). 

If  a  bill  for  any  of  these  purposes  does  not  show     [133] 
a'sufficient  ground  for  a  court  of  equity  to  inter- 
fere, the  defendant  may  demur  for  want  of  matter 
of-  equity  in  the  plaintiff's  case  to  support  the  ju- 

(/)  Richards   v.  Symes,  2  Atk.  18  Ves.  12;  6  Madd.  109. 

319  ;  Williams  v.  Lee,  3  Atk.  223  ;  (h)  Smith   v.  Bruning,   2    Vern. 

Manning  v.  Mestaer,  in  Chan.  9  Dec.  392  ;  3  P.  Wms.  394 ;  Williamson  v. 

1786,  on  cause  shown  against  dis-  Gihon,  2  Sch.  &  Lefr.  357. 

solving    injunction.      See    Field   v.  (j)  Laio  v.  Law,  3  P.  Wms.  391 ; 

Beavmont,  2  Swanst.  204.  Whittingham  v.  Bourgoyne,  3  Anstr. 

(g)  Bosanquett  v.  Dashwood,  Ca.  900 ;    Hannington  v.  Du  Chatel,  1 

t.  Talb.  38;   Osmond  v.  Fitzroy,  3  Bro.C.C.  124;  S.  C.  2  Swanst.  159, 

P.  Wms.  131 ;  Cooke  v.  Clayworth,  note. 

(1)  A  bill  to  set  aside  a  verdict  is  not  sustainable,  where  the  facts  on 
which  the  bill  is  founded,  though  discovered  since  the  trial,  might 
have  been  established  at  tiie  trial,  upon  cross-e-nminatioD.  Taylor  v. 
Sheppard,  1  Y.  &  C.  Eq.  Ex.  Ca.  271. 

(2)  [See  the  form  of  a  bill  in  such  a  case,  Willis,  l7l.] 

(3)  [See  tiie  form  of  a  demurrer  to  meet  this  sort  of  case,  Willis, 
437 ;  and  also  the  form  of  a  bill.  lb.  180.  And  a  reference  is  there 
given  to  1  Chilly  on  PL  2 18,  in  connexion  with  the  following  remark: 
In  pleadings  at  law,  public  statutes  and  the  facts  which  they  ascertain, 
must  be  noticed  by  the  courts,  without  their  being  stated  in  pleading  ; 
and  it  is  only  necessary  to  state  facts,  which  will  appear  to  the  court 
to  be  affected  by  the  statute,  concluding  in  general  with  an  express 
reference  to  the  statute,  as  by  the  words  "  contrary  to  the  form  of  the 
statute."] 


155  DEMURRERS.  [ChAP.  II. 

risdictioii  of  the  court.  And  the  courts  of  equity 
will  thus  restrain  and  relieve  against  the  effect  of 
proceedings  in  other  courts  in  such  cases  only  as 
concern  mere  civil  rights ;  and  therefore  if  a  bill  is 
brought  for  relief  against  a  proceeding  at  law  upon 
a  criminal  prosecution,  as  an  indictment,  or  infor- 
mation, or  a  mandatory  writ,  as  a  writ  of  prohibition, 
a  mandamus,  or  any  writ  which  is  mandatory  and 
not  remedial,  the  defendant  may  demur  (k)  (1). 
3.  To  enforce  3.  Thc  pHnciplcs  of  law  which  guide  the  decisions 
Bcience,  though  of  tlic  courts  of  ordiuarv  jurisdiction,  and  especially 

not  legal  rights  •'   *»  •        •        n      /•  j 

^2>-  the  courts  of  common  law,  were  prmcipally  formed 

in  times  when  the  necessities  of  men  were  few,  and 

155  their  ingenuity  was  little  exercised  to  supply  their 

wants.  Hence  it  has  happened  that,  according  to 
the  principles  of  natural  and  universal  justice,  there 
are  many  rights  for  injuries  to  which  the  law,  as 
administered  by  those  courts,  has  provided  no 
remedy.  This  is  particularly  the  case  in  matters 
of  trust  and  confidence,  of  which  the  ordinary 
courts,  taking  in  a  variety  of  instances  no  cogni- 
zance, and  the  positive  law  being  silent  on  the  sub- 
ject, the  courts  of  equity,  considering  the  conscience 
of  the  party  entrusted  as  bound  to  perform  the  trust, 
iiave  interfered  to  compel  the  performance  (2).  And 
it  lias  long  been  settled,  that  where  trustees  are  de- 
ri34]     sirous  of  acting  under  the  direction  and  protec- 

(k)  Lord  Montague  v.  Dudman,  2  Ves.  396;  1  Eq.  Ca.   Ab.  131  ;  and 
see  18  Ves.  22a. 

(1)  [See  the  form  of  a  demurrer,  Willis,  133.] 

(2)  See  note,  page  232. 

(3)  [See  the  form  of  a  bill  for  relief  in  matters  of  trust,  Willis, 
186.] 


S.  II.  p.  I.]  DEMURRERS.  156 

tion  of  a  court  of  equity,  they  may  file  a  bill  for 
those  purposes  against  the  persons  interested  in 
the  trust  property  (/)  (1).  And  in  many  other 
cases  where  the  positive  law  has  been  silent,  and 
there  are  rights  in  conscience  for  injuries  to  which 
the  ordinary  courts  afford  no  remedy,  the  courts 
of  equity  have  also  interfered  ;  enforcing  the  prin- 
ciples of  universal  justice  upon  the  ground  of  obli- 
gation on  the  conscience  of  the  party  against  whom 
they  are  enforced  (in).  To  support  a  bill  in  any  of 
these  cases,  it  is  necessary  for  the  plaintiff  to  show 
that  the  subject  of  the  suit  is  such  upon  which  a 
court  of  equity  will  assume  jurisdiction  ;  and  if  he 
fails  to  do  so,  the  defendant  may  demur. 

4.  Courts  of  equity  in  many  cases  will  act  as  an-  4.  to  remove  im- 

^   _     •'  •'_  _  pediments  to  the 

ciliary  to  the  administration  of  justice  in  other  courts,  ques'tion!'"""^* 
by  removing  impediments  to  the  fair  decision  of  a  157 

question.  Thus,  if  an  ejectment  is  brought  to  try 
a  right  to  land  in  a  court  of  common  law,  a  court 
of  equity  will  restrain  the  party  in  possession  from 
setting  up  any  title  which  may  prevent  the  fair  trial 
of  the  right  (2)  ;  as  a  term  for  years,  or  other  in- 
terest in  a  trustee,  lessee,  or  mortgagee  (n)  (2). 

(Z)  Leech  v.  Leech,  1  Ca.  in  Cha.  and  M.  c.  14,  courts  of  equity  made  ' 

249.     And  see  Fielden  v.  Fielden,  1  an  heir  responsible  to  creditors  for 

Sim.  &  Stu.  255.  the    value  of   assets  which  he  had 

(ot)  It  is  said,  1  P.  Wms.  777,  that  aliened, 
before  the  statute  of  the  3  &  4  W.         (n)  6  Ves.89  ;  1  Sch.  &  Lefr.429; 

(1)  [Mr.  Willis,  in  giving  the  form  of  such  a  bill,  refers  to  the  case 
of  Brown  v.  Yeall,  referred  to  in  a  note  to  7  Ves.  59,  and  observes,  that 
the  bill  in  this  case  appeared  to  have  been  signed  by  Lord  Redesdale 
when  at  the  bar,  and,  as  it  seems,  to  illustrate  the  theory  of  his  lord- 
ship's treatise;  and  therefore  he  (Mr.  Willis)  had  adopted  it,  p.  201.] 

(2)  [See  the  form  of  such  a  bill,  Willis,  210.] 

(3")  If  a  bill  to  prevent  tlie  setting  up  of  outstanding  terms  of  years 


157 


DEMURRERS. 


[Chap.  II. 


But  this  will  not  be  done  in  every  case  ;  for  as  the 
court  proceeds  upon  the  principle  that  the  party  in 
possession  ought  not  in  conscience  to  use  an  acci- 
[135]  dental  advantage  to  protect  his  possession  against  a 
real  right  in  his  adversary,  if  there  is  any  circum- 
stance which  meets  the  reasoning  upon  this  princi- 
ple, the  court  will  not  interfere.  Therefore,  if  the 
possessor.is  a  purchaser  for  a  valuable  consideration 
without  notice  of  the  title  of  the  claimant,  this  is  a 
title  in  conscience  equal  to  that  of  the  claimant,  and 
the  court  will  not  restrain  the  possessor  from  using 
any  advantage  he  may  be  able  to  gain  to  defend  his 
possession  (o).  It  can  hardly  appear  upon  the  face 
of  abill  that  the  defendant  is  in  such  a  situation,  and 
therefore  the  benefit  of  this  defence  must  generally 
be  taken  by  plea  •»  but  if  the  case  should  be  so 
stated,  the  defendant  might  demur;  because  the 

and  see  13  Ves.  298;  Armitage  v.  (o)  See  2    Ves.    Jun.  457,    458; 

Wadsworth,  1  Madd.  R.  189 ;  Bar-  Maundrell  v.  Maundrell,  7  Ves.  567  ; 

ney  v.  Luckett,  1  Sim.  &  Stu.  419  ;  S.  C.  10  Ves.  246. 
Northey  v.  Pearce,  ib.  420. 


Allegation  that 
a  defendant 
threatens  to  set 
up  some  out- 
standing terms. 


does  not  state  that  there  are  such  terms,  but  merely  alleges  that  the 
defendant  threatens  to  set  up  some  outstanding  satisfied  terms  of  years, 
or  some  other  legal  estate  or  interest  in  the  premises,  it  is  demurrable. 
For  an  outstanding  legal  estate  may  be  such  as  to  make  it  impossible 
for  the  plaintiff  to  recover  in  ejectment :  as  if  the  legal  fee  was  not 
vested  in  the  testator,  where  the  plaintiff  claims  by  devise.  Stansbury 
V.  Arkwright,  6  Sim.  481.  But  if  the  bill  alleges  that  there  are  some 
outstanding  terms,  which,  if  set  up  by  way  of  defence,  would  defeat 
the  ejectment,  and  that  the  defendant  threatens  to  set  up  those  terms, 
such  an  allegation  is  sufficient.  Baker  v.  Harwood,  7  Sim.  373. 
In  a  bill  to  restrain  the  setting  up  of  outstanding  terms  in  ejectment 
*°if^,'.°'  *^*lf  ^  a  positive  averment  of  an  absolute  and  indefeasible  title  in  the  plain- 

a  bill  to  restrain       '  _  '^ 

the  Betting  up  of  tiff,  as  a  devisee,  is  sufficient,  notwithstanding  the  bill  only  alleges 
termi.  that  the  devisor  "  being  or  claiming  to  be  seised  or  otherwise  well 

entitled,"  devised  the  estate  to  the  plaintiff     Houghton  v.  Reynolds,  2 

Hare,  264. 


Positive  aver- 


S.  II.  p.  I.]  DEMURRERS.  158 

case  stated  would  appear  to  be  such  in  which  a 
court  of  equity  ought  not  to  assume  jurisdiction.  If 
the  matter  suggested  in  a  bill  as  an  impediment  to 
the  determination  of  a  question  in  a  court  of  ordinary 
jurisdiction  in  fact  is  not  so,  the  defendant  may  also 
demur ;  for  then  there  is  no  pretence  for  the  inter- 
ference of  a  court  of  equity. 

5.  Pending  a  litigation  the  property  in  dispute  is  pro?erty^pl^d® 
often  in  danger  of  being  lost  or  injured,  and  in  such  ""  '  ''"  °°" 
cases  a  court  of  equity  will  interpose  to  preserve  it, 
if  the  powers  of  "the  court  in  which  the  litigation  is 
depending  are  insufficient  for  thepui-pose  (1).    Thus 
during  a  suit  in  an  ecclesiastical  court  for  admi- 
nistration of  the  effi3Cts  of  a  person  dead,  a  court  of 
equity  will  entertain  a  suit  for  the  mere  preservation 
of  the  property  of  the  deceased  till  the  litigation  is     [136] 
determined,  although  the  ecclesiastical  court,  by 
granting  an  administration  penr^ew^e  Zii^e,  will  provide 
for  the  collection  of  the  effects  (p)  (2).    And,  pend- 
ing an  ejectment  in  a  court  of  common  law,  a  court  1^9 
of  equity  will  restrain  the  tenant  in  possession  from 
committing  waste,  by  felling  timber,  ploughing  an- 
cient meadow,  or  otherwise  (q).     Against  this  in- 
convenience a  remedy  at  the  common  law  was  in 
many  cases  provided  during  the  pendency  of  a  real 

(p)  King  v.- King,  6  Ves.   172  ;  Jones  v.  Frost,  3  Madd.  I  ;  S.  C.  I 

Richards  v.  Chave,  12  Ves.  462  ;  Ed-  Jac.  R.  46G  ;  6  Madd.  49,  105. 

munds  \.  Bird,  I  Ves.  &   Bea.  542;  (q)  Pulteney   v.   Shelton,   5   Ves. 

Atkinson  v.  Henshnw,  2  Ves.  &  B.  260,  note;    Lathropp   v.  Marsh,  5 

85  ;   Ball  v.  Oliver,  2  Ves.  &  B.  96  ;     Ves.  259  ;  and  see    Onslow  v.  , 

Rutherford  v.  Douglas,  rep.  1   Sim.  16  Ves.  173. 
&  Stu.    Ill,    11.;    3    Meriv.    174; 


(1)  See  note,  page  132. 

(2)  [See  llie  form  of  such  a  bill,  Willis,  215.] 


159  DEMURRERS.  [ChAP.  II. 

action  by  thef  writ  of  estrcpcment  (r)  ;  and  when  the 
proceeding  by  ejectment  became  the  usual  mode  of 
trying  a  title  to  land,  as  the  writ  of  estrepement  did 
not  apply  to  the  case,  the  courts  of  equity,  proceed- 
ing on  the  same  principles,  supplied  the  defect. 

But,  in  general,  if  the  court  in  which  the  suit  is 
depending  can  itself  provide  for  the  safety  of  the 
property,  a  demurrer  will  hold.  The  interference 
to  preserve  the  effects  of  a  person  dead  pending  a 
litigation  in  the  ecclesiastical  court,  touching  the 
administration  of  those  effects,  scarcely  forms  an  ex- 
ception to  this  rule ;  for  the  protection  afforded  by  an 
adimnistrsition  pendente  lite  has  been  often  a  very 
insufficient  protection ;  and  in  the  administration  of 
personal  effects  the  courts  of  equity  have  assumed' 
a  concurrent  jurisdiction  with  the  ecclesiastical 
courts,  and  for  many  purposes  have  a  much  more 
[137]  effectual  jurisdiction,  particularly  for  payment  of 
creditors,  and  concluding  all  parties  by  the  judgment 
of  the  court  in  the  distribution  of  the  effects,  and 

160  preserving*  the  surplus  for  the  benefit  of  those 
who  may  finally  appear  to  be  entitled  to  it  (1). 

the^ksISiTo^f*      6-  Doubts  have  been  suggested  how  far  a  court 
f/a°mannlrpro-  of  cqulty  ought  to  interfere  to  prevent  injury  arising 

ductire  of  irre-  1 .  •        n  i      t         ' 

parable  damage  to  property  pending  a  suit  founded  on  trespass. 
This  doubt,  it  should  seem,  ought  to  be  confined 
to  cases  of  mere  trespass,  and  where  the  injury  done 

(r)  F.  N.  B.  60. 


(1)  [See  the  form  of  a  bill  by  simple  contract  creditors  for  payment 
of  debt  and  marshalling  assets,  Willis,  220.] 

(2)  See  note,  page  1 32. 


«S.  II.  p.  I.]  DEMURRERS.  160- 

is  not  probably  irreparable  (s)  (1).  But  when  a 
doubtful  right  has  been  asserted  in  a  manner  pro- 
ductive of  irreparable  injury,  the  courts  have  inter- 
fered.    Therefore,  where  the  tenants  of  a  manor,  ^  »°  «=""  °* 

'  •  '   waste,  and  m- 

claiming  a  right  of  estovers,  cut  down  a  great  cop^n'^huan^d 
quantity  of  growing  timber  of  great  value,  their  p^'*"**" 
title  being  doubtful,  the  court  of  chancery  en- 
tertained a  bill  at  the  suit  of  the  lord  of  the  manor 
to  restrain  this  assertion  of  it  (t) ;  and  indeed  the 
commission  of  waste  of  every  kind,  as  the  cutting 
of  timber,  pulling  down  of  houses,  ploughing  of 
ancient  pasture,  working  of  mines,  and  the  like,  is  a 
very  frequent  ground  for  the  exercise  of  the  juris- 
diction of  courts  of  equity,  by  restraining  the  waste 
till  the  rights' of  the  parties  are  determined.  The 
courts  of  equity  have  also  extended  their  relief  to 
restrain  the  owner  of  a  mine  from  workinsf  minerals 
in  the  adjoining  land  of  another,  though  a  mere  tres- 
pass under  the  cover  of  a  right  (u).  [138]  161 

The  courts  of  equity  seem  to  have  proceeded 
upon  a  similar  principle  in  the  very  cammon  cases 
of  persons  claiming  copy- right  of  printed  books  (2), 

(«)  Hanson   v.  Gardiner,  7  Ves.  and   Stonor  v.  Whiting,  Hil.  1768, 

305  ;  10  Ves.  291 ;  17  Ves.  110, 281 ;  in  Chan.  1  Sch.  &  Lefr.  8. 
1    Swanst.    208,  210.      See  above,         (u)  Mitchell  v.  Dors,  6  Ves.  147 ; 

136,  note  (u).  7  Ves.  308  ;  Thomas  v.  Oakley,   18 

(0  Stonor  V.  Strange,  M\ch.  1767,  Ves.  184. 


(1)  [See  the  form  of  a  bill  for  an  account  and  mjunction  where  a 
trespass  has  been  committed,  Willis,  228] 

(2)  Where  a  person  seeks  to  restrain  an   infrtngempnt  of  his  copy-     N°*  ncccBiary 
...  .  ....     to    specify  pira- 

right,  it  is  not  necessary  for  him  to  ^^p'>cif3',  either  in  his  bill  or  in  his  ted  passages. 

affidavit,  the  parts  of  the  defendant's  work  which  have  been  taken 
from  his  wol-k ;  but  it  is  sufficient  to  allege  generally,  that  parts  of  the 
defendant's  work  have  been  pirated  from  the  plaintiff's  work.  For  the 
pirated  passages  are  pointed  out  by  counsel  when  the  injunction  is 
moved  for.     Sweet  v.  Maugham,  11  Sim.  51. 


161  DEMURRERS.  [ChAP.  II.  * 

and  of  patentees  of  alleged  inventions  (1),  in  re- 
straining the  publication  of  the  book  at  the  suit  of 
the  owner  of  the  copy,  and  the  use  of  the  sui)posod 
invention  at  the  suit  of  the  patentees  (2).  But  in 
both  these  cases  the  bill  usually  seeks  an  account; 
in  one,  of  the  books  printed,  and  in  the  other,  of  the 
profit  arisen  from  the  use  of  the  invention  ;  and  in 
all  the  cases  alluded  to  it  is  frequently,  if  not  con- 
stantly, made  a  part  of  the  prayer  of  the  bill  that 
the  right,  if  disputed,  and  capable  of  trial  in  a  court 
of  common  law,  may  be  there  tried  and  determined 
under  the  direction  of  the  court  of  equity  ;  the  final 
object  of  the  bill  being  a  perpetual  injunction  to 
restrain  the  infringement  of  the  right  claimed  by 
the  plaintiff  (a:). 

162  In  all  cases  of  waste  committed  on  lands  or  tene- 

(x)  On  the  subject  of  copyright,  2  Ves.  &  Bea.  19  ;  Gee  v.  Pritck- 

see    Hogg  v.   Kirby,   8   Ves.  215;  ard,    2    Swanst.  402;    Rundell   v. 

Longman    v.    Winchester,   16    Ves.  Murray,  1  Jac.  R.  311 ;  Lawrence  v. 

269;  Wilkinsv.  Aikin,\l  Nes.A'22;  Smith,  1  Jac.  R.  471;  Barfield  v. 

Southey  v.  Sherwood,  2  Meriv.  435;  Nicholson,  2  Sim.  &  Stu.  1  (3) ;  oa 

Lord  and  Lady  Percival  v.  Phipps,  that  of  patents,  see  Harmer  v.  Plane, 

Allegations  in  a      (1)  In  a  bill  to  restrain  the  infringement  of  a  patent,  it  is  not  ne- 

infringement^of  cessary  to  set  forth  a  full  statement  of  the  specification  enrolled  in 

apatent.  respect  of  the  letters  patent.     If  the  plaintiff  by  his  bill  refers  to  the 

specification,  and  alleges  tliat  he  has  done  all  that  was  required  of  him, 

the  court  on  demurrer  will  give  credit  to  the  allegation.     Westhead  v. 

Keene,  8  Law  J.  (N.  S.)  Ch.  Rep.  89. 

(2)  [See  the  form  of  such  a  bill  as  to  copyright,  Willis,  233,  and 
notes  there.     And  as  to  a  patent,  lb.  246.] 

(3)  [Also,  Mawman  v.  Tegg,  2  Russ.  385;  Baily  v.  Taylor,  1 
Russ.  &.  M.  73.  As  to  restoring  a  bill  relating  to  copyright.  Bar- 
field  V.  Nicholson,  I  Sim.  494.  The  act  of  congress  of  May  31, 1790, 
ch.  42,  (2  Bior.  104,)  refers  the  party  injured  in  a  case  of  copyright  to 
any  court  of  record  of  the  United  States  wherein  the  same  is  cogniza- 
ble ;  but  no  jurisdiction  is  given  to  either  the  circuit  or  district  courts. 
Binns  v.  Woodruff,  Coxe's  Digest,  197.] 


S.  II.  p.  I.]  DEMURRERS.  162 

ments,  the  courts  of  equity  originally  proceeded  by 
analogy  to  the  provisions  of  the  old  common  law, 
by  which  tenant  by  the  courtesy  and  in  dower  an- 
swered only  for  the  value  of  the  waste  done,  and  a 
custos  was  assigned  to  prevent  further  waste.  The 
statute  of  Marlebridge,  52  H.  III.  c.  23,  added  a 
fine  for  the  offence  to  full  damage  for  the  injury 
done  ;  and  afterwards  the  statute  of  Gloucester,  [1^9] 
6  Edw.  I.  c.  5,  gave  treble  damages,  and  the  for- 
feiture of  the  place  wasted  by  tenant  by  the  courtesy, 
for  life,  or  for  years.  The  forfeiture  by  waste,  and 
all  penalties,  ought  to  be  waived  in  a  bill  for  re- 
straining waste(?/),  the  courts  of  equity  declining  to 
compel  a  discovery  which  may  subject  a  defendant 
to  any  penalty  or  forfeiture,  and  confining  the  relief 
given  to  compensation  for  the  damage  done,  and 
restraining  future  injury  (2).  So  at  law  the  person 
entitled  to  the  benefit  of  forfeiture  for  waste  might 
waive  the  action  for  waste,  and  maintain  an  action 
of  trover  for  trees  felled  by  a  tenant  impeachable 
for  waste  (z). 

With  respect  to  copyholds,  the  courts  appear,  in 
some  instances,  to  have  refused  to  restrain  waste, 
and  left  the  lord  to  his  legal  remedy  by  forfeiture  (a). 

14  Ves.  130  ;    Canham  v.  Jones,  2  (a)   Dench  v.  Bampton,  4  Ves.  700. 

Ves.  &  Bea.  248 ;  Hill  v.  Thompson,  In  a  cause,  however,  of  Richards  v. 

3  Meriv.  622  (1).  Noble,  before   Lord  Erskine,  when 

(y)   1  Atk.  451.  Chancellor,  now  reported  in  3  Meriv. 

(z)  Berry  v.  Heard,  Cro.  Car.  242.  673,  this  decision  was  overruled. 

(1)  [Sheriff  v.  Coates,  1  Russ.  &  M.  159;  Burrall  v.  Jewett,  2 
Pai^re'sC.  R.  134.] 

(•2)  See  the  forms  of  bills  to  restrain  waste,  Willis,  39,  254 ;  and 
prayer  for  injunction  to  restrain,  lb.  9.  And  see  notes  at  p.  254,  of 
the  same  book.] 


163  DEMURRERS.  [ChAP.  IL 

The  rights  of  the  lord  and  ten  ant- of  copyholds  de- 
pending on  the  custom  of  each  manor,  it  has  per- 
haps been  thought  that  the  lord  is  not  entitled  to 
that  protection  which  is  given  to  rights  ascertained 
by  the  common  law  of  the  land,  and  that  he  has 
generally  the  remedy  in  his  own  hands.  Upon  a 
lease  of  land  in  Ireland  for  lives,  renewable  for  ever, 
the  courts  of  equity  there  have  declined  restraining 
waste  not  specially  provided  for  by  the  terms  of 
the  lease  (h). 
[140]  But  in  the  case  of  waste  the  courts  of  equity  have 

in  many  instances  given  remedies  where  the  com- 
mon law  has  provided  none.  Thus  in  the  case  of 
coparceners  (c)  and  tenants  in  common  (d),  the 
court  has  interfered  to  prevent  the  destruction  of  the 
property  by  one  coparcener,  or  one  tenant  in  com- 
mon, to  the  injury  of  the  rest  (e).  So  where  tenant 
for  life  not  impeachable  for  waste  has  proceeded  to 
destruction  of  a  mansion-house  (/),  or  to  cut  down 
ornamental  trees,  or  trees  necessary  for  the  protec- 
tion of  a  mansion,  or  young  saplings  (g).  In  these 
cases  it  should  seem  that  the  courts  have  proceeded 
on  the  ground  that  the  acts  done  were  an  uncon- 
scientious use  of  the  powers  given  to  the  particular 
tenant,  and  in  some  instances  perhaps  partaking  of 
][g4  the  nature  of  mere  malicious  mischief  (/i).     It  has 

(6)   Calvert  v.  Gason,  2   Sch.  &         (/)   Vane    v.    Lord    Barnard,  2 

Lefr.  561.  Vera.  758. 

(c)  Beaumont  and  Sharp,  May  9,         {g)  Abraham  v.  Buhh,  2  Freera. 
1751.  53;   Chamberlynev.  Dummer,lBTO. 

(d)  Hole  V.  Thojnas,  TVes.  589;  C.  C.   166,   and  cases  there  cited; 
Twort  V.  Twort,  16  Ves.  128.  and  see  above,  p.  137,  note  (u). 

(e)  7  Ves.  590  ;  16  Ves.  131.  (A)  2  Freem.  278  ;  Bishop  of  fjon- 

don  V.  Web,  1  P.  Wms.  527. 


S.  II.  p.  I.]  DEMURRERS.  164 

been  much  doubted  whether  in  some  instances  this 
rehef  has  not  been  carried  to  an  extent  which  may 
be  found  productive  of  great  inconvenience,  and  per- 
haps injustice,  if  the  decisions  should  be  imphcitly 
followed  (^). 

Where  persons  were  bound  by  covenant  to  keep 
the  banks  of  a  river  in  repair,  and  by  their  acts  in 
contravention  of  the  covenant  great  injury  was  likely 
to  arise,  a  court  of  equity  has  interfered  by  in-     [141] 
junction  (k). 

In  all  the  cases  in  which  the  interference  of  a 
court  of  equity  is  thus  sought,  if  the  bill  should  not 
clearly  show  the  title  of  the  plaintiff,  or  his  right  to 
demand  the  assistance  of  the  court  in  his  favour,  or 
that  the  case  is  one  to  which  the  court  will  apply 
the  remedy  sought,  the  defendant  may  demur. 

7.  It  has  been  mentioned  (/)  that  where  two  or     t.to  compel 

,     .  ,  ,   .  1         T  rv  •   1  two  claimantato 

more  persons  clami  the  same  thmg  by  diiie  rent  titles,  interplead. 
and  another  person  is  in  danger  of  injury  from  igno- 
rance of  the  real  title  to  the  subject  in  dispute, 
courts  of  equity  will  assume  a  jurisdiction  to  pro- 
tect him  ;  and  that  the  bill  exhibited  for  this  pur- 
pose is  termed  a  bill  of  interpleader,  the  object  of  it 
being  to  compel  the  claimants  to  interplead,  so  that 
the  court  may  adjudge  to  whom  the  property  be- 
longs, and  the  plaintiff  may  be  indemnified  (1). 

(i)  See  16  Ves.  185.  cited  2  Brown,  C.  C.  65. 

(k)  Lord  Kilmorey  v.  Thackeray,         (0  See  above,  p.  58. 

(1)  See  note  to  p.  132,  and  p.  59,  note. 

[8ee  the  form  of  such  a  bill,  Willis,  30.3,  and  notes  there.  Also,  p. 
49,  50.  ante,  and  the  notes. 

In  The  Mohawk  and  Hudson  Rail  R.  Co.  v.  Clute,  4  Paige,  385, 
where  the  substance  of  an  interpleader  bill  is  given,  the  bill  prayed 
that  the  defendants  may  interplead  and  adjust  their  respective  claims 


165  DEMURRERS.  [ClIAP.  IL 

The  principles  upon  which  the  courts  of  equity  pro- 
ceed in  these  cases  are  similar  to  those  by  which 
the  courts  of  law  are  guided  m  the  case  of  bail- 
ment ;  the  courts  of  law  compelling  interpleader  be- 
tween persons  claiming  property,  forth6  indemnity 
of  a  third  person  in  whose  hands  the  property  is, 
in  certain  cases  only ;  as  where  the  property  has 
been  bailed  to  the  third  person  by  both  claimants, 
or  by  those  under  whom  both  make  title  ;  or  where 
the  property  came  to  the  hands  of  the  third  person 
by  accident ;  and  the  courts  of  equity  extending  the 
remedy  to  all  cases  to  which  in  conscience  it  ought 

between  themselves,  and  that  the  just  or  proper  sums  might  be  paid  to 
such  of  the  defendants  as  should  appear  to  be  entitled  to  the  same. 
Also,  a  prayer  for  general  relief  and  for  a  preliminary  injunction. 
The  bill  was,  it  was  held,  defective  in  form  as  a  simple  bill  of  inter- 
pleader : 

1.  An  offer  to  pay  so  much  as  is  properly  chargeable,  or  as  the  court 
may  direct  would  be  a  very  proper  offer  in  a  bill  for  relief  in  the  na- 
ture of  a  bill  of  interpleader ;  but  as  the  complainant  in  a  simple  bill 
of  interpleader  which  is  filed  for  the  simple  purpose  of  asking  the  de- 
fendants to  litigate  and  settle  their  conflicting  claims  between  them- 
selves, cannot  litigate  any  part  of  the  claim  of  either  defendant,  the 
complainant  should,  it  seems,  pay  into  court  the  largest  sum  claimed, 
(where,  for  instance,  two  several  taxes  in  different  places  are  assessed 
on  the  same  property  and  it  is  doubtful  to  which  it  belongs)  or  pay  to 
the  one  party  the  balance  over  what  was  claimed  by  the  other;  or,  at 
least,  offer  to  bring  into  court  the  greater  or  less  amount  assessed. 

2.  Complainant  must  show  that  he  is  ignorant  of  the  rights  of  de- 
fendants, or  that  there  is  some  doubt  at  least,  to  which  of  such  defen- 
dants the  debt  or  duty  belongs.  So  that  he  cannot  safely  pay  or  ren- 
der it  to  one  without  some  risk  of  being  made  liable  for  the  same  to 
the  other.  For  the  only  ground  upon  which  the  court  assumes  juris- 
diction in  a  simple  bill  of  interpleader,  is  the  danger  of  injury  to  the 
complainant  from  the  doubtful  rights  and  conflicting  claims  of  the  seve- 
ral defendants  as  between  themselves.  For  this  reason  he  must  state 
his  own  situation  in  reference  to  the  fund  in  question  or  the  duty  to 
be  performed  and  the  nature  of  the  claims  of  the  several  defendants 
to  the  same.     Idem  391 — 2 — 3. 


S.  II.  p.  I.]  DEMURRERS.  165 

to  extend,  whether  any  suit  has  been  commenced     [142] 
by  any  claimant,  or  only  a  claim  made  (?/i). 

This  remedy  has  been  applied  to  the  case  of 
tenants  of  lands  charged  with  annuities,  and  liable 
to  distress  by  their  landlord,  and  the  claimants  of 
annuities  (n),  and  to  other  cases  of  disputed  titles  (o), 
in  which  the  tenants  have  been  permitted  to  pay 
their  rents  into  court  ( J!?). 

If  a  bill  of  interpleader  does  not  show  that  each  of  166 

the  defendants  whom  it  seeks  to  compel  to  inter- 
plead claims  a  right,  both  the  defendants  may  de- 
mur ;  one,  because  the  bill  shows  no  claim  of  right 
in  him ;  the  other,  because  the  bill,  showing  no  claim 
of  right  in  the  co-defendant,  shows  no  cause  of  in- 
terpleader {q)  (2).     Or  if  the  plaintiff  shows  no 

(m)  It  may  here  be  noticed,  that  if  Angell  v.   Hadden,  15  Ves.  244  ;  S. 

at  the  hearing  the  question  between  C.  16  Ves.  202. 

the  defendiints  be  ripe  for  decision,  (o)   Wood  v.  Kay  and   Wife  and 

this  court  will  make  a  decree  ;  and  others,  19  Dec.  1786;  2  Ves.  Jr.  312  ; 

that  if  such  be  not  the  case,  it  will  16  Ves.  203,204. 

direct  an  action,  an  issue  or  a  refe-  (p)  It  is  however  observable,  that 

rence  to  a  master,  in   order  to  bring  in  such  cases  the  court  interferes  on 

the  matter  to  a  determination.     See  the  ground  of  privity  having   been 

Duke  of  Bolton  v.  Williams,  2  Ves.  created  by  the  act  of  the  landlord  be- 

Jr.  138  ;    >S.    C.  4  Bro.  C.  C.  297;  tween  his  tenant  and  the  other  claim- 

Angell  v.  Hadden,  16  Ves.  202.  ant.      See   Cowtan  v.    Williains,   9 

(n)  Surry  and  others,   tenants  of  Ves.  107  ;  Clarke  v.  Byne,    12  Ves. 

Lord  Waltham,  against    Vaux  and  383  ;  E.  I.   Cump.  v.   Edwards,  18 

others,  28  Feb.  1785;  Aldridge  v.  Ves.  376. 

Thom])son,2   Bro.  C.  C.  150  ;    Lord  (q)  1  Ves. 249  (1). 
Thomond's  Case,  cited  9  Vea.  107  ; 

(1)  See  the  forms  of  such  demurrers,  Willis  440,  441.  And  look  at 
the  case  of  Bedell  v.  Hoffman,  2  Paige's  C.  R.  199.] 

(2)  The  one  may  demur  upon  tiie  ground  that  complainant  has  a 
perfect  defence  at  law,  against  his  claim ;  and  the  other  that  t\w  com- 
plainant has  neither  a  legal  or  an  equitable  defence  to  his  claim,  and 
has  therefore  no  right  to  call  on  him  to  interplead  with  a  third  person 


166  DEMURRERS.  [ChAP.  II. 

right  to  compel  the  defendants  to  interplead,  what- 
ever rights  they  may  claim,  each  defendant  may 
[143]     demur  (r).     A  bill  of  this  nature  is  also  liable  to  a 

(r)  As,  for  example,   if  a   tenant  304  ;  2  Anstr.  532  ;  JoAnson  v.  vl/A-in- 

were    to  file  such  a  bill   against  his  son,  3  Anstr.  798  ;  or,  an  agent  against 

landlord,  and  a  person  with  whom  he  his   principal    and    a    third    person, 

himself  has  no  privity,  but  who  claims  Nicholson    v.     Knowles,    5     Madd. 

ty  a  title  adverse  to  that  of  the  land-  47  (1) ;   a  debtor  against  his  creditor 

lord.    Dungey  v.  Angove,  2  Ves.  Jr.  become    a  bankrupt,   and    the    ae- 


who  has  no  right.  Where  it  appeared  on  the  bill  it  was  not  a  proper 
case  for  interpleader,  and  the  defendants,  instead  of  demurring,  put  in 
answers,  and  went  to  a  hearing  on  pleadings  and  proofs,  inserting  in 
their  answers,  however,  that  the  bill  was  improperly  filed,  the  chtn- 
cellor,  on  dismissing  the  bill  said,  it  should  be  dismissed  without  pre- 
judice to  the  rights  of  complainants  on  any  future  litigatiun  with 
either  defendant;  so  as  not  to  preclude  him  upon  the  merits  of  their 
respective  claims,  which  could  not  be  legally  adjudicated  in  this  form 
of  proceeding;  and  allowed  the  defendants  costs  nn'y,  which  they 
would  have  had  if  they  demurred,  and  the  bill  had  been  dismissed 
thereon.     Shaw  v.  Coster,  8  Paige's  R.  339,  et  seq. 

[And  see  Randolph's  ackninislralrix  v.  Kinney,  3  Randolph's  R.  394. 
A  bill  of  interpleader  may  be  filed,  though  the  party  has  not  been  sued  at 
law,  or  has  been  sued  by  one  only  of  the  conflicting  claimants,  or 
though  the  claim  of  one  of  the  defendants  is  actionable  at  law  and 
that  of  the  other  inequity.  Richards  v.  Sailer,  6  J.  C.  R.  445.  And 
see  also,  Langston  v.  Boyleslon,  2  Ves.  Jr.  107  ;  Angell  v.  Hadu'en, 
supra  ;  Morgan  v.  Monsack,  2  Meriv.  107  ;  Stephenson  v.  Anderson, 
2  V.  &  B.  407.] 

Where  a  bill  of  interpleader  is  filed  by  the  officer  of  a  company  on 
behalf  of  a  company,  the  affidavit  annexed  ought  to  state,  not  that  the 
secretary,  who  is  the  mere  nominal  plaintitF,  does  not  colluile,  but  that 
to  the  best  of  his  knowledge  and  bs^lief,  the  society,  who  are  tlie  real 
plaintifl^s,  do  not  collude  with  the  defendants.  Bignold  v.  Amland, 
11  Sim.  23. 

(1)  [But  see  the  case  of  Pearson  v.  Cardon,  4  Simon's  R.  220.  The 
facts  of  which  case  were  these:  B.  &  Co.  deposited  gnods  with  the 
complainants  (warehousemen)  to  await  their  directions ;  and  they  af- 
terwards directed  that  the  goods  should  be  trani^ferred  to  and  held  for 
T.,  which  was  done  accordingly.  The  goods  were  subsequently 
claimed  by  C.  as  having  been  deposited  by  him  with  B.  &.  Co.,  as  his 
agents  for  the  purpose  of  sale  :     Held,  that  although  the  complainants 


S.  II.  p.  I.]  DEMURRERS.  166 

peculiar  cause  of  demurrer ;  for  as  the  court  will  not 
permit  such  a  bill  to  be  brought  in  collusion  with 
either  claimant,  the  plaintiff,  as  has  been  already 
mentioned,  is  required  to  annex  to  hisbill  an  affidavit 
that  it  is  not  exhibited  in  collusion  with  any  of  the 
parties,  to  induce  the  court  to  entertain  jurisdiction 
of  the  suit  ;  and  the  want  of  that  affidavit  is  there- 
fore a  ground  of  demurrer  (s)  (1).     A  bill  of  this  167 
nature  generally  prays  an  injunction  to  restrain  the 
proceedings  of  the  claimants  in  some  other  court; 
and  as  this  may  be  used  to  delay  the  payment  of 
money  by  the  plaintiff,  if  any  is  due  from  him,  he 
ought  by  this  bill  to  offer  to  pay  the  money  due  into 
court  (t)  (2).     If  he  does  not  do  so,  it  is  perhaps  in 
strictness  a  ground  of  demurrer  (3). 

signees    of    the    latter,   Harlow    v.  (s)  Metcalf   v.    Hari-'cy,    1    Ve8. 

Crowley,  1    Buck,  B.   C.   273,  and  248  ;  and  see  2  Ves.  &.  Bea.  410. 

Lowndes  v.   Cornford,  18  Ves.  299  ;  (0  Lord   Thanat  v.  Patterson,  3 

S.  C.  1  Rose,  B.  C.  180.  Barnard,  247  ;  2  Ves.  Jun.  108,  109. 


were  the  agents  of  B,  &  Co.,  yet  that  C.  claimed  under  a  paramount 
title  ;  and.  thereforp,  that  it  was  a  case  ot  interpleader.] 

(Ij  [Tobin  V.  Wilson,  3  J.  J.  Marshall's  R.  67;  Manks  v.  Holroyd,  Affidavit  as  to 
1  Co  wen's  R.  691.  In  Connecticut,  there  is  no  occasion  for  this  affi-  collusion, 
davit.  Nash  v.  Smith,  6  Day's  R.  421.  Nor  is  the  non-offer  of  bring- 
ing the  money  into  court  any  ground  for  demurrer.  lb.  See  the 
form  of  a  demurrer  for  want  of  such  an  affidavit,  Willis,  442;  Eq. 
Draft.  77,  (2d  edit.)  The  form  of  the  affidavit  in  Harrison's  Pract.  is 
eaid  to  go  too  far.  Stevenson  v.  Anderson,  2  Ves.  (fc  B.  410.  In 
Prax.  Aim.  Cur.  Can.  part  2,  p.  80,  there  is  the  form  of  one  which 
does  not  seem  liable  to  the  same  objection.  It  runs  thus:  "The 
"  plaintiff  A.  B.  maketh  oath  and  saith,  tbat  this  bill  is  exhibited  by 
"him  voluntarily,  and  on  his  ovvn  account,  and  at  hi.s  own  co.'^ts;  and 
"not  at  tlie  desire  or  by  the  persuasion,  or  at  the  costs  of  any  of  the 
"  parties  defendants  thereto."] 

(2)  Where  a  bill  of  interpleader  is  filed  respecting  a  sum  of  money     offer  to  pay 
on  which  interest  is  payable  at  law,  under  the  stat.  3  &.  4  W.  IV.  c.  '°*<=''^^"^- 

42,  s.  8,  (as  in  the  case  of  a  sum  insured,)  the  plaintiff  ought  to  offer 
by  his  bill  to  pay  the  interest.     Bignold  v,  Au-llanil,  11  Sim.  23. 

(3)  A  bill  of  interpleader  is  not  demurrable  on  account  of  its  not 

16 


167 


DEMURRERS. 


[Chap.  II. 


8.  To  put  a 
bound  to  litiga- 
tion; 


[144] 


as  in  the  case  of 
actions  of  eject- 
ment. 


168 


Nuisances. 


Offer  to  pay 
money   into 
court. 


8.  In  many  cases  the  courts  of  ordinary  jurisdic- 
tion admit,  at  least  for  a  certain  time,  of  repeated 
attempts  to  litigate  the  same  question.  To  put  an 
end  to  the  oppression  occasioned  by  the  abuse  of  this 
privilege,  the  courts  of  equity  have  assumed  a  juris- 
diction (?/)  (1).  Thus,  actions  of  ejectment  having 
become  the  usual  mode  of  trying  titles  at  the  com- 
mon law,  and  judgments  in  those  actions  not  being 
in  any  degree  conclusive,  the  courts  of  equity  have 
interfered  ;  and,  after  repeated  trials,  and  satisfac- 
tory determinations  of  questions,  have  granted  per- 
petual injunctions  to  restrain  further  litigation  (x), 
and  thus  have  in  some  degree  put  that  restraint  upon 
litigation  which  is  the  policy  of  the  common  law  in 
the  case  of  real  actions  (?/)  (2). 

Upon  the  same  principle  (z)  the  courts  of  equity 
seem  to  have  interfered  in  cases  as  well  of  private 
as  of  public  nuisance  (3) ;  in  the  first,  at  the  suit  of 
the  party  injured  («)  ;  in  the  second  at  the  suit  of 
the  attorney-general  (b)  (4)  :  restraining  the  exer- 


It  seems  that  there  might  be  a  case 
in  which  a  demurrer  would  be  pre- 
vented by  the  money  being  brought 
into  court.     See  19  Ves.  323. 

(m)  2  Sch.  &  Lefr.  211. 

(x)  Earl  of  Bath  v.  Sherwin, 
Free,  in  Chan.  2fil  ;  S.  C.  4  Brown, 
P.  C.  373,  Toml.  Ed.  Leighf.on  v. 
Leighton,  1  P,  Wms.  671  ;  5".  C. 
4  Bro.  P.  C.  378,  Toml.  Ed.  And 
see  Anon.  Gilb.  Eq.  R.  183  ;   -S._  C. 


2  Eq.  Abr.  172;  Barefoot  v.  Pry, 
Bunb.  158  ;  2  Sch.  &  Lefr.  211. 

(y)  Strange,  404. 

(2)  See  Dick.  464  ;  16  Ves.  342  ; 
19  Ves.  622. 

(a)  See  Ryder  v.  Bentham,  1  Ves.- 
543  ;  Att.  Gen.  v.  Nicholl,  16  Ves. 
338  ;   S.C.3  Mer.  687. 

(b)  See  Anon.  3  Atk.  750  ;  S.  C. 
named  Baines  v.  Baker,  Ambl.  158  ; 
Att.  Gen.  v.  Cleaver,  18  Ves.  211. 


offering  to  pay  the  money  claimed  into  court.  But  it  is  said  that  the 
plaintiff  must  bring  it  in  before  he  takes  any  step  in  the  cause.  Meux 
V.  Bell,  6  Sim.  175.     But  see  supra,  pp.  164,  note,  166,  note. 

(1)  See  note  top.  132. 

(2)  [The  Revised  Statutes  of  New- York  have  fixed  the  number  of 
new  trials  at  two,  in  cases  of  ejectment.     2  R.  S.  309.] 

(3)  See  note  to  p.  1 32,  supra. 

(4)  But  the  jurisdiction  of  the  court  in  behalf  of  private  persons 


S.  11.  p.  r.]  DEiMURRERS,  168 

cise  of  the  nuisance  where  the  proceedings  at  law 
are  ineffectual  for  the  purpose,  and  preventing;  the 
creation  of  a  nuisance  where  irreparable  injury  to 
individuals,  or  great  public  injury  would  en- 
sue (c)  (1).  In  the  case  of  a  private  nuisance  it 
seems  necessary  that  a  judgment  at  law,  ascertain- 
ing the  rights  of  the  parties,  should  have  been  pre-  [145] 
viously  obtained  (d)  (2).  On  informations  by  the 
attorney-general  on  behalf  of  the  crown  the  court 
of  exchequer  has  proceeded  to  the  abatement  of 

(c)  16  Ves.  342.  3  Meriv.  688  ;   Wynstanley  v.  Lee, 

{d)  19  Ves.  622  ;  Chalk  v.  Wyatt,    2  Swanst.  333. 

has   been   sustained  in    those   cases  where   there  is  imminent  dan-  » 

ger  of  irreparable  mischief  before  the  tardiness  of  law  could  reach  it. 
The  "court  pursuing  the  analogy  of  the  law,  that  a  party  may  maintain 
a  private  action  for  special  damage,  even  in  case  of  a  public  nuisance, 
will  now  take  such  jurisdiction  at  the  instance  of  a  private  person, 
where  he  is  in  imminent  danger  of  suffering  a  special  injury  for  which, 
under  the  circumstances  of  the  case,  the  law  would  not  afford  an 
adequate  remedy.  The  principle  is,  that  in  case  of  a  public  nuisance, 
where  a  bill  is  filed  by  a  private  person,  asking  for  relief  by  means  of 
prevention,  the  plaintiff  cannot  maintain  a  stand  in  a  court  of  equity, 
unless  he  avers  and  proves  some  special  injury.  City  of  Georgetown 
v.  The  Alexandria  Canal  Co.,  <^c.,  12  Peters  98,  91. 

To  sustain  a  general  demurrer  to  the  bill,  in  Massachusetts,  it  must 
appear  that  no  substantial  and  essential  part  of  the  complaint  is  within 
the  provisions  of  the  statute  conferring  equity.  The  statute  author- 
izes the  court  to  hear  and  determine  in  equity  any  matter  touching 
waste  or  nuisance  in  which  there  is  not  a  plain  adequate  and  complete 
remedy  at  law.  See  Boston  Water  Power  Co.  v.  Boston  and  Wor- 
cester Rail  Road  Corporation,  16  Pick.  R.  521,  512. 

(1")  [Van  Bergen  v.  Van  Bergen,  2  J.  C.  R.  272;  Gardiner  v.  Trus- 
tees of  Newhurgh,  lb.  162;  Hart  v.  Mayor,  cfc,  of  Albany,  3  Paij^e's 
C.  R.  213.  There  must  be  a  case  of  strong  and  imperious  necessity,  or 
the  right  must  have  been  previously  established  at  law,  before  tho  court 

will  lend  its  aid  in  restraining  the  exercise  of  a  nuisance.     Corning  v. 

Lowerie,  6  lb.  439.] 

(2)  See  the  form  of  a  demurrer,  in  such  a  case,  Willis  443,  and  note 

{h)  there. 


168  DEMURRERS.  [ChAP.  II. 

nuisances  injurious  to  the  royal  prerogative,  such  as 
nuisances  in  harbors,  or  even  trespasses  on  the 
public  rights  of  the  crown  without  any  nuisance  (e). 
If  a  trespass  is  made  on  the  soil  of  the  crown, 

169  whether  reserved  for  the  private  use  of  the  sovereign, 
or  for  public  purposes,  and  the  trespass  does  not 
produce  a  public  injury,  the  jurisdiction  may  be 
founded  on  the  right  of  the  crown  to  have  the  land 
arrented,  and  the  profit  accounted  for  as  part  of  the 
royal  revenue,  in  the  nature  of  an  assart ;  and  if  the 
trespass  produces,  or  may  in  its  consequences  pro- 
duce, public  injury, the  crown  is  entitled  to  the  most 
effectual  means  of  preventing  the  injury  (/). 

Courts  of  equity  will  also  prevent  multiphcity  of 

suits ;  and  the  cases  in  which  it  is  attempted,  and  the 

General  rigbts  mcaus  uscd  for  that  purpose,  are  various  (1).     With 

several  persons,  this  vlcw,  whcrc  OHO  gcucral  legal  right  is  claimed 

against  several  distinct  persons,  a  bill  may  be  brought 

to  establish  the  right (^)  (2).     Thus  where  aright 

of  fishery  was  claimed  by  a  corporation  throughout 

the  course  of  a  considerable  river,  and  was  opposed 

by  the  lords  of  manors  and  owners  of  land  adjoin- 

[146]      ing,  a  bill  was  entertained  to  establish  the  right 

(e)  Att.  Gen.  V.  Forbes,  Ex.  Tr'm.  (g)  2   Atk.  484;    11   Ves.  444; 

1795;  Hale  de  Jure  Maris,  p.  l,c.  4.  Corporation  of  Carlisle  v.   Wilson, 

p.    13  ;     Churchman    v.     Tunstal,  13   Ves.  276  ;   Duke  of  Norfolk  v. 

Hardr.  162;  Att.  Gen.  v.  Richards,  Myers,  4  Madd.  83;  1  Jac.  &  W. 

Anstr.  603.  369. 

(/)  18  Ves.  218. 

It  has  been  said,  in  Maryland,  that  chancery  will  restrain  a  public 
nuisance,  pending-  any  judicial  proceedings  before  those  tribunals  by 
which  the  authority  to  do  the  act  or  its  lawfulness  is  to  be  determined. 
Williamson  v.  Carnan,  1  Gill  &.  Johns.  184.] 

(1)  See  note  to  p.  132,  sup?-a. 

(2)  [See  the  form  of  such  a  bill,  Willis,  277.] 


S.   II.  p.  I.]  DEMURRERS.  169 

against  the  several  opponents,  and  a  demurrer  was 
overruled  (h).^ 

As  the  object  of  such  bills  is  to  prevent  multipli- 
city of  suits  by  determining  the  rights  of  the  parties 
upon  issues  directed  by  the  court,  if  necessary  for 
its  information,  instead  of  suffering  the  parties  to  be 
harassed  by  a  number  of  separate  suits,  in  which 
each  suit  would  only  determine  the  particular  right  170 

in  question 'between  the  plaintiff  and  the  defendant 
in  it,  such  a  bill  can  scarcely  be  sustained  where  a 
right  is  disputed  between  two  persons  only,  until 
the  right  has  been  tried  and  decided  upon  at  law  (i). 
Indeed  in  most  cases  it  is  held  that  the  plaintiff 
ought  to  establish  his  right  by  a  determination  of 
a  court  of  law  in  his  favor  before  he  files  his  bill 
in  equity  (k) ;  and  if  he  has  not  so  done,  and  the 
right  he  claims  has  not  the  sanction  of  long  posses- 
sion (I),  and  he  has  any  means  of  trying  the  matter 
at  law  (m),  a  demurrer  will  hold  (1).  If  he  has  not 
been  actually  interrupted  or  dispossessed,  so  that  he 
has  had  no  opportunity  of  trying  his  right,  he  may 
bring  a  bill  to  establish  it,  though  he  has  not  pre- 
viously recovered  in  affirmance  of  it  at  law,  and  in 
such  a  case  a  demurrer  has  been  overruled  (n). 

It  is  not  necessary  to  establish  a  right  at  law  be-     [147] 

(A)  Mayor  of  York  v.  Pilkington,  (m)   Whitchurch  v.  Hyde,  2  Atk. 

1  Atk.  282.  391;    Wells  v.   Smeaton,  in  Chan, 
(i)    Lord    Teynham    v.   Herbert,  27  May,  1784. 

2  Atk.  48.3.  (n)  1  Atk.  284.     And  see  Duke 
(k)  1    Atk.    284  ;    Anon.    2   Ves.  of  Dorset  v.  Girdler,  Free,  in  Chan. 

414;  2  Sch.  &.  Lefr.  208;   11  Ves.  5.31.     But  see    Welby  v.    Duke    of 

444  ;  1  Jac.  &  W.  369.  Rutland,  2  Bro.  P.  C.  39,  Toinl.  Ed. ; 

(Z)  Bush    V.    Western,    Prec.    in  2  Sch.  &  Lefr.  209. 
Chan.  530. 

(1)  [See  tlie  form  of  a  demurrer,  relating  to  a  nuisance,  which  will 
answer  in  this  case,  Willis,  443.] 


170  DEMURRERS.  [ChAP.  II. 

fore  filing  a  bill  where  the  right  appears  on  record, 
as  under  letters  patent  for  a  new  invention,  in  which 
case  a  demurrer  to  abill  for  an  injunction  to  restrain 
an  infringement  of  the  patent  right  has  been  over- 
ruled (o).  So  in  the  casesofl/iUsbroughtby  authors, 
or  their  assignees,to  restrain  thesale  of  books  where 

171  the  right  which  is  the  foundation  of  the  bill  is 
grounded  on  an  act  of  parliament  (p).  And  where 
a  right  appeared  on  record  by  a  former  decree  of 
the  court,  it  was  determined  that  it  was  not  neces- 
sary to  establish  it  at  law  before  filing  a  bill  (q). 
Where  a  right  prima  facie  and  of  common  right  is 
vested  in  the  crown,  it  will  receive  the  same  pro- 
tection (r),  and  this  principle  maybe  applied  to  some 
of  the  cases  mentioned  in  a  preceding  page. 

A  court  of  equity  will  thus  protect  private  rights, 
or  rights  of  those  who  may  be  comprehended  under 
one  common  capacity,  as  the  inhabitants  of  a  parish, 
or  the  tenants  of  a  manor,  which  has  been  frequent- 
ly done  in  bills  to  establish  parochial  customs  of 
tithing  disputed  by  the  tithe-owner,  and  more  rarely 
in  bills  to  establish  the  customs  of  manors  disputed 
by  the  lord  (s)  ;  but  will  not  establish  or  decree  a 
[148]  perpetual  injunction  for  the  enjoyment  of  a  right  in 
contradiction  to  a  public  right,  as  a  right  to  a  high- 
way, or  a  common  navigable  river,  for  that  would 

(o)  Horton  and  Maltby,  in  Chan.  (s)  New  Elme  Hospital  v.  Ando- 

23  July,  1783  ;  3  Meriv.  624.  (1).  ver,  1  Vera.  266  ;   Bul<er  v.  Rogers, 

(p)  1  Ves.  476.  Sel.  Ca.    in  Cha.   74 ;    Cowper    v. 

(q)  Ibid.  Clerk,  3  P.  Wms.   155 ;  2  Eq.  Ca. 

(r)  See  6  Ves.  713  ;  Grierson  v.  Ab.  172. 
Eyre,  9  Ves.  341  ;  13  Ves.  508. 

(1)  [And  See  Mawman  v.  Teggt  2  Russ.  285.] 


S.  II.  p.  I.]  DEMURRERS.  171 

be  to  enjoin  all  the  people  of  England  (^),  although 
it  will  restrain  a  public  nuisance  at  the  suit  of  the 
attorney-general. 

A  court  of  equity  will  also  prevent  injury  in  some  nmjuiatimet. 
cases  by  interposing  before  any  actual  injury  has 
been  suffered  ;  by  a  bill  which  has  been  sometimes 
called  a  bill  quia  timet  (1),  in  analogy  to  proceed-  3^72 

ings  at  the  common  law,  where  in  some  cases  a 
writ  may  be  maintained  before  any  molestation,  dis- 
tress, or  impleading  (u).  Thus  a  surety  may  file 
a  bill  to  compel  the  debtor  on  a  bond  in  which  he 
has  joined  to  pay  the  debt  when  due,  whether  the 
surety  has  been  actually  sued  for  it  Or  not  ;  and 
upon  a  covenant  to  save  harmless,  a  bill  may  be 
filed  to  relieve  the  covenantee  under  similar  cir- 
cumstances (x)  (2). 
,  9.  To  administer  to  the  ends  of  justice  without  9.  to  compel  a 

1  1   •    1  ly  discovery  in  aid 

pronouncmg  any  judgment  which  may  aiiect  any  of  other  courto. 

(t)  Lord  Hardwicke,  in  Lord  {x)  Lord  Ranelagh  v.  Hayes, 
Fauconberg  and  Pierse,  11th  of  1  Vern.  189,  190,  and  on  the  general 
May,  1753  ;  2  Eq  Ca.  Ab.  171  ;  subject,  see  also  1  Ves.  283  ;  Flight 
Ambl.  210.  V.  Cook,  2  Ves.  619  ;  Green  v.  Pigot, 

(«)  Co.  Litt.  100,  a.  1  Bro.  C.  C.  103  ;  Brown  v.  Dud- 

hridge,  2  Bro.  C.  C  321. 


(1)  See  rote  to  p.  132. 

[A  bill  quia  timet  will  not  lie,  unless  the  complainant  uiay  be  sub- 
jected to  loss  by  the  neglect,  inadvertence  or  culpability  of  another. 
Randolph's  administrator  v.  Kinney,  3  Randolph's  II.  394. 

The  j)revpntive  relief  which  which  this  species  of  bill  aff)rds  being 
requisite  in  those  cases  only  where  the  property  is  o^  a  perishable  na- 
ture, it  cannot,  of  cour,*e,  be  necessary  in  respect  of  the  inheritance 
of  real  estate.     Jeremy's  Kq.  Jur.  350. 

A  plea  of  a  former  recovery  to  a  bill  quia  timet  must  show  that  the 
eame  subject  matter  and  the  right  to  the  same  land  was  before  decided 
upon.   "  Cates  v.  Lofius'  heirs,  4  Monroe's  R.  441.] 

2)  [Seethe  form  of  a  bill  in  such  a  case,  Willis,  298.] 


172  DEMURRERS.  [ChAP.  II. 

rights,  the  courts  of  equity  in  many  cases  compel  a 
discovery  which  may  enable  other  courts  to  decide 
on  the  subject.  The  cases  in  which  this  jurisdic- 
tion is  exercised  will  be  considered  in  treating  of 
demurrers  to  discovery  only. 
teatooSy^*"'"'  10  Wlien  the  testimony  of  witnesses  is  in  dan- 
ger of  being  lost  before  the  matter  to  which  it  re- 
[149]  lates  can  be  made  the  subject  of  judicial  investiga- 
tion, a  court  of  equity  will  lend  its  aid  to  preserve 
and  perpetuate  the  testimony  (t/)  (1)  ;  and  as  the 
courts  of  common  law  cannot  generally  examine 
witnesses  except  viva  voce  upon  the  trial  of  an  ac- 
tion, the  courts  of  equity  will  supply  this  defect  by 
taking  and  preserving  the  testimony  of  witnesses 
gonig  abroad,  or  resident  out  of  the  kingdom  (z), 

173  which  may  be  afterwards  used  in  a  court  of  com- 
mon law.  As  the  object  of  this  jurisdiction  is  to 
assist  other  courts,  and  by  preserving  evidence  to 
prevent  future  litigation,  there  aje  few  cases  in 
which  the  court  will  decline  to  exercise  it.  A  de- 
murrer to  a  bill  seeking  the  benefit  of  it  will  there- 
fore seldom  lie  {a)  (1)  ;  and  in  a  case  where  the 
court  was  of  opinion  that  the  defendant  might  de- 
mur both  to  the  discovery  sought  and  the  relief 

(jy)   See  above,  62,  note  {y).  dizabel  v.    Machado,  2  Sim.  &  Stii. 

(z)  As  to  the  examination  of  wit-  483. 

nesses  resident  abroad,  see   Cock  v.  (a)  1  Atk.  451^571  ;    1   P.  Wms. 

Donovan,^  Ves.  &  Bea.  76  ;  Bowden  117  ;  Tirrell  v.  Co.,  1  Rol.  Ab.  383  ; 

V.  Hodge,2  Swdnst.25S:  Cheminant  Mendez  v.  Barnard,  16  May,  1735, 

V.  De  La  Cour,  1  Madd.  203  ;  Devis  on  demurrer  ;  Lnd  Dursley  v.  Fitz- 

V.   Turnbull,  6  Madd.  232  ;   Baskett  hardinge,  6  Ves.  jun.  251    to   266. 

V.     Toosey,  5   Madd.    261  ;    Angell  See  however,  The  Earl  of  Belfast  v. 

V.  Angell,  1  Sim.  &  Stu.  83  ;  Men-  Chichester,  2  Jac.  &  W.  439. 

(1)  [A  bill  to  perpetuate  testimony,  to  lands  of  which  the  complain- 
ants were  out  of  possession,  has  been  dismissed  on  demurrer.  Smith- 
Ballard,  2  Hayward's  (North  Carolina)  R.  289.] 


S.  II.  p.  I.]  DEMURRERS.  173 

prayed  by  a  bill,  it  was  held  that  to  so  much  of  the 
bill  as  sought  to  pei-petuate  the  testimony  of  wit- 
nesses the  defendant  could  not  demur  (h).  But  if 
the  case  made  by  the  bill  appears  to  be  such  on 
which  the  jurisdiction  of  the  court  does  not  arise, 
as  if  the  matter  t'o  which  the  required  testimony  is  [150] 
alleged  to  relate  can  be  immediately  investigated 
in  a  court  of  law,  and  the  witnesses  are  resident  in 
England,  a  demurrer  will  hold  (c)  (1).  Still,  how- 
ever, where  from  circumstances,  as  the  age  or  in- 
firmity of  witnesses,  or  their  intention  of  leaving  the 
kingdom,  it  has  been  probable  that  the  plaintiff 
would  lose  the  benefit  of  their  testimony,  though 
he  should  proceed  with  due  diligence  at  law,  the 
courts  has  sustained  a  bill  for  their  examination  (d);  174 

and  to  avoid  a  demurrer  in  this  case  it  seems  neces- 
sary to  annex  to  the  bill  an  affidavit  of  the  circum- 
stance by  means  of  which  the  testimony  may  pro- 
bably be  lost  (e).  A  bill  for  the  examination  of  a 
single  witness  has  been  permitted  where  his  evi- 
dence was  of  the  utmost  importance,  and  he  was 
the  only  witness  to  the  point,  apparently  upon  the 

(b)  Earl  of  Suffolk  v.  Green,  rers,  3  P.  Wms.  77  ;  Palmer  v.  Lord 
1  Atk.  450.  See  Thorpe  v.  Macau-  Aylesbury,  15  Ves.  176;  Andrews  v. 
lay,  5  Madd.  218;  S/iakell  v.  Ma-  Palmer,  1  Ves.  &  B.  91  ;  Corbett  v. 
caulay,  2  Sim.  &  Stu.  79.  Corbett,  1  Ves.  &  B.  335  ;  Atkins  v. 

(c)  Lord  North  v.  Lord  Gray,  Palmer,5  Ma6d.  Id  ;  Dew  v.  Clarke, 
Dick.  14  ;  1  Sim.  &  Stu.  89.  1  Sim.  &-  Stu.  108. 

(d)  As  to  the  examination  of  wit-  (e)  Phillips  v.  Carew,  1  P.  Wms. 
nesses  under  such  circumstances,  de  117  ;  1  Ves.  &  B.  23  (2). 

bene  esse,  see  Shirliy  v.   Earl  Per- 


il) [See  thefcrmof  such  a  demurrer,  Willis,  445.  Also  the  form  of 
a  bill  to  perpetuate  testimony,  lb.  311.  And  the  affidavit,  Harrison's 
Pract.  (Newl.  ed.)  407.     Look  also  at  page  51,  antp.] 

(2)  Laight  v.  Morgan,  2  C.  C.  E.  344  ;  S.  C.  1  J.  C.  429. 


174  DEMURRERS.  [CuAP.  II. 

single  ground,  that  as  he  was  the  only  witness  there 
was  danger  of  losing  all  evidence  of  the  matter  be- 
fore it  could  be  given  in  a  court  of  law  :  but  in  this 
case  an  affidavit  of  the  witness  was  annexed  to  the 
bill  (/).  The  principle  on  which  it  is  required  in 
these  cases  to  annex  to  the  bill  an  affidavit  of  the 
circumstances  which  render  the  examination  of 
[151]  witnesses  proper  in  a  court  of  equity,  though  the 
matter  is  capable  of  being  made  immediately  the 
subject  of  a  suit  at  law,  seems  to  be  the  same  as 
that  on  which  the  practice  of  annexing  an  affidavit 
of  the  loss  or  want  of  an  instrument  to  a  ])!ll  seeking 
to  obtain  in  a  court  of  equity  the  mere  legal  effect 
of  the  instrument  is  founded,  namely,  that  the  bill 
tends  to  alter  the  ordinary  course  of  the  admin- 
istration of  justice,  which  ought  not  to  be  permit- 
ted upon  the  bare  allegation  of  a  plaintiff  in  his 
bill  (1). 

175  II.  It  has  been  before  noticed,  that  the  establish- 
other  court""  ^  ment  of  courts  of  equity  has  obtained  throughout 
^rjjper  jurisdic-  tlic  wliolc  systcm  of  our  judicial  polity  ;  and  that 

most  of  the  inferior  branches  of  that  system  have 
their  peculiar  courts  of  equity,  the  court  of  chancery 
assuming  a  general  jurisdiction  in  cases  not  within 
the  bounds,  or  beyond  the  powers  of  inferior  jurisdic- 
tions. The  principal  of  the  inferior  jurisdictions  in 
England  are  those  of  the  counties  palatine  of  Chester, " 
Lancaster,  and  Durham,  the  courts  of  great  session 
in  Wales,  the  courts  of  the  two  universities  of  Oxford 

(/)   Shirley  v  Earl  Ferrers,  4th     N. ;  3  P.  Wms.  77  ;  M.   1730,  8  Vea- 
Seal  after  Trin.  Term,  1730.    MS.     32.     See  above,  p.  63,  note  (z). 

(1)  Laight  V.  Morgan,  2  C.  C.  E.  344. 


S.  II.  p.  I.]       DEMURRERS.  175 

and  Cambridge,  the  courts  of  the  city  of  London  and 
of  the  cinqiie-ports  (g)  (1).  These  are  necessarily 
bounded  by  the  locahty  either  of  the  subject  of  the 
suit  or  of  the  residence  of  the  parties  litigant. 
Where  those  circumstances  occur  which  give  them 
jurisdiction  they  have  exclusive  jurisdiction  in  mat- 
ters of  equity  as  well  as  matters  of  law ;  and  they 
have  their  own  peculiar  courts  of  appeal,  the  court  [152] 
of  chancery  assuming  no  jurisdiction  of  that  nature, 
though  it  will  in  some  cases  remove  a  suit  before 
the  decision  into  the  chancery  by  writ  of  certiorari. 
When  therefore  it  appears  on  the  face  of  a  bill  that 
another  court  of  equity  has  the  proper  jurisdiction, 
either  immediately,  or  by  way  of  appeal,  the  defend- 
ant may  demur  to  the  jurisdiction  of  the  court  of 
chancery.  Thus  to  a  bill  of  appeal  and  review  of 
a  decree  in  the  court  of  the  county  palatine  of  Lan- 
caster the  defendant  demurred,  because  on  the  face  176 
of  the  bill  it  was  apparent  that  the  court  of  chancery 
had  no  jurisdiction ;  and  the  demurrer  was  allowed 
(A).  But  demurrers  of  this  kind  are  very  rare ;  for 
the  want  of  jurisdiction  can  hardly  appear  upon  the 
face  of  the  bill,  at  least  so  conclusively  as  is  neces- 
sary {i)  to  deprive  the  chancery,  a  court  of  general 
jurisdiction,  of  cognizance  of  the  suit  ;  and  a  de- 
murrer for  want  of  jurisdiction  founded  on  locality 
of  the  subject  of  the  suit,  which  alone  can  exclude 
the  jurisdiction  of  the  chancery  in  a  matter  cog- 

(g)  The  court  of  exchequer,  as  a  (h)    Jennet  v.    Bishopp,  1    Vern. 

court  of  equity,  does  not  seem  to  give  184. 

to  any  person  the  privilege  of  beiug  (i)   See  1  Ves.  203,204. 
sued  there. 

(1)  See  notes,  p.  6. 


176  DEMURRERS.  [ChAP.  IL 

nizable  in  a  court  of  equity,  has  even  been  treated 
as  informal  and  improper  (k).  This,  however,  can 
only  be  considered  as  referring  to  cases  where 
circumstances  may  give  the  chancery  jurisdiction, 
and  not  to  cases  where  no  circumstance  can  have 
that  effect.  Thus  the  .counties  palatine  having 
their  peculiar  and  exclusive  courts  of  equity  under 
certain  circumstances,  which  will  be  more  fully 
[153]  considered  in  another  place  (/),  the  court  of  chan- 
cery will  not  interfere  when  all  those  circumstances 
attend  the  case,  and  they  are  shown  to  the  court  ; 
though  if  those  circumstances  are  not  shown,  or  if 
they  are  not  shown  in  proper  time,  and  the  defen- 
dant, instead  of  resting  upon  them  and  declining 
the  jurisdiction,  enters  into  the  defence  at  large,  the 
court,  having  general  jurisdiction,  will  exercise  it. 
But  where  no  circumstance  can  give  the  chancery 
jurisdiction,  as  in  the  case  alluded  to  of  a  bill  of 

1 ' '  appeal  and  review  of  a  decree  in  a  county  palatine, 

it  will  not  entertain  the  suit,  even  though  the  defend- 
ant does  not  object  to  its  deciding  on  the  subject. 

m.  Disability  of      HI.  If  a  plaintiff"  is  not  entitled  to  sue  by  reason 

the  plamtiff.  ^  •' 

of  any  personal  disability  (m),  which  is  apparent  in 
the  bill,  the  defendant  may  demur.  Therefore,  if 
an  infant,  or  a  married  woman,  an  idiot  or  a  lunatic, 
exhibiting  a  bill,  appear  upon  the  face  of  it  to  be 
thus  incapable  of  instituting  a  suit  alone,  and  no 
next  friend  or  committee  is  named  in  the  bill,  the 
defendant  may  demur  (1)  ;  but  if  the  incapacity  does 

(k)    See    Roberdeau   v.    Rous,  1     the  court  of  chancery. 
Atk.  543.  (m)  See   Wartnaby  v.  Wartnaby, 

(J)  See  pleas  to  the  jurisdiction  of    1  Jac.  R.  377. 

(1)  [See  the  form  of  a  demurrer,  Willis,  449.] 


S.  II.  p.  I.]  DEMURRERS.  177 

not  appear  upon  the  face  of  the  bill,  the  defendant 
must  take  advantage  of  it  by  plea.  This  objection 
extends  to  the  whole  bill,  and  advantage  may  be 
taken  of  it  as  well  in  the  case  of  a  bill  for  discovery 
merely  as  in  the  case  of  a  bill  for  relief.  For  the 
defendant  in  a  bill  for  a  discovery  merely,  being 
always  entitled  to  costs  after  a  full  answer  as  a 
matter  of  course,  would  be  materially  itnjured  by 
being  compelled  to  answer  a  bill  exhibited  by  per- 
sons whose  property  is  not  in  their  own  disposal,  [154"] 
and  who  are  therefore  incapable  of  paying  the 
costs. 

IV.  Interest  in  the  subject  of  the  suit  (1),  or  a  riffht  i^'  ^^ant  of  in- 

J                                          \    J'                   O  terest  or  a  title 
to  sue. 

(1)  If  one  or  some  of  the  co- plaintiffs  be  not  interested  in  the  sub-  co-piaintiffs  not 

ject  of  the  suit,  the  bill  is  demurrable  :  {Pa-ev.  Townsend,  5  Sim.  395  ;  a"'aragent!°°^ 
Delondre  v.  Shaw,  2  Sim.  237,)  as  in  the  case  of  a  mere  agent  con- 
cerned with  the  subject  matter  of  the  suit,  ( The  King  of  Spain  v.  j\Ia- 

chado,  4  Russ.  225;)  or  a  trustee  under  a  deed  which  never  had  any  ^^^  a™vo1d^'- 

operation  as  a  valid  instrument.     Cuff  v.  Platel,  4  Russ.  242.  stnunerit; 

So  where  an  indorsee  of  a  bill  of  exchange  brings  an  action  against  or  a  person  for 

the  acceptor  (a  banker)  who  accepted  the  bill  as  agent  for  another  (a  ^ce™ed°a'bm 

customer.)  and  refuses  to  pay  on  the  ground  that  the   indorsee  is  not  of  exchnnf^e,  a 

,  ....  ^  ,  ,  co-plaintift'  with 

the  person  authorized  to  receive  tlie  money  by  the  party  to  whose  or-  such  acceptor, 
der  it  was  made  payable,  and  the  acceptor  files  a  bill  of  discovery  in  cQ^eryin°aid  of 
aid  of  his  defence  ;  such  a  bill  is  demurrable,  if  the  party  for  whom  he  ^^^  defence  to 

'  r       J  j,„  action  agamst 

accepted  the  bill  is  joined  with  him  as  a  co-plaintifF:  because  there  is  the  acceptor. 
no  contract  between  the  indorsee  and  the  party  for  whom  the  acceptor 
has  accepted  the  bill:  the  indorsee  has  nothing  whatever  to  do  with 
that  party,  although  he,  and  not  the  acceptor,  is  the  person  substan- 
tially interested  in  the  result  of  the  action. 

And  if,  in  such  a  suit,  the  party  to  whose  order  the  money  was  paya- 
ble, is  an  officer  of  the  government  of  a  foreign  country,  and  the 
money  forms  part  of  a  loan  negotiated  by  the  government  of  that  coun- 
try, and  the  government  is  changed,  no  question  can  be  mised  respect- 
ing the  right  of  a  new  government,  or  any  one  claiming  through  it,  to 
receive  the  money  negotiated  by  the  former  government:  for,  in  such 
a  suit,  the  question,  who  is  beneficially  entitled  to  the  money,  cannot 
be  discussed.  G/yn  v.  Scares,  3  M.  &K.  456.  In  this  case  tiie  trea- 
surer of  the  royal  treasury  of  Portugal  was  the  officer  to  whose  order 


178  DEMURRERS.  [ChAP.  IL 

in  the  thing  demanded,  and  proper  title  to  institute 

179  a  suit, concerning  it  (1),  are  essentially  necessary  to 


the  money  was  payable,  as  part  of  a  loan  negotiated  by  Don  Miguel, 
who  was  shortly  afterwards  succeeded  by  Donna  Maria. 
Reasons  against      Great  evil  might  be  occasioned  if  persons  having  no  interest   were 
pTa^iufflfe^per-      allowed  to  be  made   co-plaintiffd   with  others  hiving  an  interest  in 
BODS  having  no  the  subject  of  the  suit,     ^ar  instance,  by  an  artful  selection  of  co- 
plaintiffs  having  no  interest,  a  co-plainlifT  having  an  interest  might 
thereby  in-ure  such  a  series  of  abatements,  by  a  succession  of  deaths 
and  marriages,  as  would   enable  him  to  oppress  the  defendants,  and 
prevent  the  suit  from  ever  reaching  a  stage  in  which  the  expense  might 
be  made  to  recoil  upon  himself.     And  if  a  defendant  had  occasion  to 
file  a  cross-bill,  he   would  be  obliged    to  make  the  other  co-plaintifts 
defendants  thereto.     Again,  a  plaintiff  out  of  the  jurisdiction  of  the 
court  might  escape  from  giving  security  for  costs,  by  joining,  as  a  co- 
plaiiiliff,  a  person  having  no  interest,  but  residing  within  the  jurisdic- 
tion.    And  all  the  plaintiffs  who  have  an   interest  in  the  suit  might 
die  and  leave  those  who  have  no  interest  to  carry  on  tlie  suit.     Arg.  of 
counsel  in  The  King  of  Spain  v.  Machado,  4  Russ,  225. 
Exception  in  the      Where  a  bill  is  filed  against  a  trustee  for  a  breach  of  trust,  but  two 
pufntiffs ^Md**    °^  ^^^  co-plaintiffs  induced  the  trustee  to  commit  such  breach  of  trust, 
others.  and  gave  him  an  indemnity  in  respect  thereof,  still,  if  the  other  co- 

plaintiffs  are  infants,  and  the  objection  is  not  taken  until  the  hearing, 
it  will  be  overruled,      Wilkinson  v.  Parry,  4  Russ.  272. 
Bill  by  an  uncer-       (0  An  uncertificated  bankrupt  cannot  call  on  his  assignees  for  a 
tificated  bank-    general  account  of  all  their  transactions,  which  he  might  have  by  ap» 

nipt  against  his  °  '  &  j      r 

assignees.  p'y'"g  to  the  court  of  bankruptcy.     Tarleion  v.  Hornby,  1  Y.  &  C.  Eq. 

Ex.  172. 
Bill  by  a  bank-  '    But  if  the  assignees  of  a  bankrupt  fraudulently  and  collusively  sell 
assign^T'and  a  ^is  estate  while  he  is  proceeding  to  get  his  commission  superseded,  he 
^rchaser  from  may  file  a  bill  against  them  and  the  purchaser,  to  set  aside  thesale,  on 
the  ground  of  fraud  and  collusion,  if  the  purchaser  has  not  come  in  un- 
der the' commission,  so  that  the  court  of  review  has  no  jurisdiction  over 
him,  and  if  the  bankrupt  has  settled  with  all  his  creditors,  and  they 
have  consented  to  the  commission  being  superseded.    Lau'oiir  v.  Hol- 
combe,  8  Sim.  76. 
Bill  by  an  in-      And  a  bill  by  an  insolvent  to  set  aside  an  assignment  by  his  as- 
solvent,  signee  of  his  interest  under  a  will,  on  the  ground  of  a  special  case  of 
collusion  between  his  assignees  and  the  executors,  is  not  demurrable. 
Burton  V.  Jayne,!  Sim.  24:.     The  counsel  for  the  insolvent,  in  this 
case,  urged  that  the  collusion,  and  the  fact  that  the  Insolvent  Debtors' 
Court  had  no  power  to  set  aside  deeds,  were  Sufficient  to  maintain  thje 
bill. 


S.  II.  p.  I.]  DEMURRERS.  17^ 

sustainabill;  and  if  they  are  not  fully  shown  by  the 
bill  itselfthe  defendant  may  demur  (w)  (1).  There- 
fore, where  a  protestant  next  of  kin  claimed  a  rent- 
charge  settled  on  a  papist  on  her  marriage,  a  de- 
murrer was  allowed  (/?),  for  the  plaintiff  had  evi- 
dently no  right  to  the  thing  which  he  demanded  by 
his  bill,  the  papist  being  incapable  of  taking  by 
purchase  (2),  and  the  grant  of  the  rent-charge  being  180 

therefore  utterly  void.  And  where  a  plaintiff  claim- 
ed under  a  will,  and  it  was  apparent  upon  the  con- 
struction of  the  will  that  he  had  no  title,  a  demurrer 
was  allowed  (o)  (3).  But  in  this  case  it  was  said, 
that  if  upon  arguing  the  demurrer  the  court  had 
not  been  satisfied,  and  had  been  therefore  desirous 
that  the  matter  should  be  more  fully  debated  at  a 
deliberate  hearing  (j?),  the  demurrer  would  have 

(m)  See  2  Sell.  &  Lefr.  638  ;  Dar-  Free,    in     Chan.    589  ;    Parker    v. 

thez  V.  Winter,  2  Sim.  &  Stu.  536;  Fearnley,2  Sim.  &  Stu.  592. 

(n)  See  Michaux  v.  Grove,  2  Alk.  {p)  Perhaps  this    declaratien    fell 

210.  from  the   court  rather  incautiously  ; 

(o)   Brownsword   v.    Edwards,  2  as  a  dry  question  upon  the  construc- 

Ves.  2 13.     See  also  Beech  v.  Crull,  tion  of  a  will  may  be  as  deliberately 


(1)  [if,  of  several  complainants,  some  have  an  interet^t  in  the  matter 
of  tlie  ^uit,  and  others  hrtve  no  interest  in  it,  but  are  merely  the  agents 
of  their  co-plain!  iffn,  a  general  demurrer  to  tl:e  whole  bill  is  a  good  de- 
fence. King  of  Spain  V .  Machado,  4  Russ.  224;  and  see  Cuff  v.-Pla^ 
tell,  lb.  242  ;  Clarkson  v.  De  Peyster,  3  Paige's  C.  R.  339.] 

(2)  This  disability  was  abolished  by  the  stat.  10  Geo.  IV.  c.  7,  s.  23. 

(3)  [See  the  form  of  a  demurrer,  Willis,  154.] 

On  bill  by  claimant  under  a  decree  of  real  property,  filed  for  disco- 
very relative  thereto  and  for  account,  the  principle  vva.s  recognized  on 
demurrer  that  to  entitle  himself  to  a  discovery,  he  must  ?how  a  perfect 
prima  facie  title,  before  he  can  call  on  the  party  in  possession  to  dis- 
close his.  Van  Kleeic  v.  The  Reformed  Du'ch  Church,  on  ajjirmance  of 
S.  C. ;  The  Reformed  Dutch  Church,  V.  C,  6  Paige  R.  606^  et  seq. 
In  Error,  20  Wend.  R.  458.  507. 


180  DEMURRERS.  [ChAP.  II. 

been  overruled  without  prejudice  to  the  defend- 
ant's insisting  on  the  same  matter  by  way  of  answer 
[155]  (^),  which  indeed  it  should  seem  may  in  all  cases 
be  done  without  the  special  declaration  of  the  court, 
that  the  overruling  of  the  demurrer  shall  be  with- 
out prejudice. 

Though  the  plaintiff  in  a  bill  may  have  an  interest 
in  the  subject,  yet  if  he  has  not  a  proper  title  to  in- 
stitute a  suit  concerning  it,  a  demurrer  will  hold  (?•) 

181  (!)•  Therefore,  where  persons  who  had  obtained 
letters  of  administration  of  the  estate  of  an  intestate 
in  a  foreign  court,  on  that  ground  filed  a  bill  seeking 
an  account  of  the  estate,  a  demurrer  was  allowed 

determined  upon  argument  of  a  de-  (r)   It  seems  the  plaintiiF  must  dis- 

murier  as  at  the  hearing  of  a  cause  tinctly  show  a  title  iu  equity  ;  for, 

in  the  ordinary  course ;    and  the  dif-  where   one  stated   a  title  either  at 

ference  in  expense  to  the  parties  may  law  or  in  equity,  a  demurrer  was  al- 

be  considerable.     See  above,  p.  130,  lowed.     Edwards    v.    Edwards,    1 

note  (n).  Jac.  R.  335. 
(9)  2  Ves.  247. 

Consent  of  cred-  (1)  See  note,  p.  179.  The  clause  in  the  Insolvent  Debtors' Act, 
assi^ees ^of ' ^  ^  ^^^-  ^^'  ^'  119,  s.  11,  requiring  the  consentof  the  major  part  in  value 
insolvent  of  the  creditors  to  the  institution  of  a  suit,  was  inserted  for  the  benefit 

of  the  creditors  alone;  so  that  the  want  of  such  consent  cannot  be 
or  bankrupt        urged  as  an  objection  by  a  defendant  in  a  suit  by  th/e  assignees.  Piercy 

V.  Roberts,  1  M.  &  K.  4.     And  the  same  is  the  case  with  regard  to 

suits  by  the  assignees  of  bankrupts.     Gerothwohl  v.  Cochrane,  5  Law 

J.  (N.  S.)  47,  M.  R. 
Necessity  for      Where  a  person  files  a  bill  against  the  directors  of  an  unincorpo- 

plaintiff's  show-  rated  ioint-stock  company,  in  respect  of  a  fraud  committed  by  them  on 
ing  his  title.  f      J  v  j 

the  shareholders;  and  by  the  rules  of  the  company,  as  stated  in  the 

bill  itself,  no  transfer  of  shares  is  to  be  valid,  unless  the  purchaser  shall 
have  been  approved  of  by  a  board  of  directors,  and  shall  have  executed 
a  proper  instrument  binding  himself  to  the  observance  of  the  regula- 
tions of  the  company  ;  and  the  plaintiff  in  such  bill  alleges  that  he  pur- 
chased and  is  the  holder  of  shares,  but  he  does  not  set  forth  his  title  as 
purchaser,  or  state  that  he  had  complied  with  the  condition  precedent 
above  mentioned  ;  the  bill  is  demurrable  on  that  account.  Walburn 
V.  Ingilby,  1  M.  &  K.  61. 


S.  II.  p.  I.]  DEMURRERS.  '  181 

;(s),  because  the  plaintiffs  did  not  show  by  their  bill 
a  complete  title  to  institute  a  suit  concerning  the 
subject ;  for  though  they  might  have  a  right  to  ad- 
ministration in  the  proper  ecclesiastical  court  in 
England,  and  might  therefore  really  have  an  interest 
in  the  thing  demanded  by  their  bill,  yet,  not  showing 
that  they  had  obtained  such  administration,  they 
did  not  show  a  complete  title  to  institute  their  suit 
(1).  And  where  an  executor  does  not  appear  by  his 
bill  to  have  proved  the  will  of  his  testator,  or  ap- 
pears to  have  proved  it  in  an  improper  (t)  or  insuf- 
ficient (u)  court,  as  he  does  not  show  a  complete 
title  to  sue  as  executor,  a  demurrer  will  hold  (2). 

Want  of  interest  in  the  subject  of  a  suit,  or  of  a 
title  to  institute  it,  are  objections  to  a  bill  seeking 
any  kind  of  relief,  or  filed  for  the  purpose  of  dis- 
covery merely.  Thus,  though  there  are  few  cases 
in  which  a  man  is  not  entitled  to  perpetuate  the 
testimony  of  witnesses,  yet  if  upon  the  face  of  the 
bill  the  plaintiff"  appears  to  have  no  certain  right  to 
or  interest  in  the  matter  to  which  he  craves  leave 
to  examine,  in  present  or  in  future  (x),  a  demurrer 

(s)   Tourton  v.  Flower,  3  P.  Wms.  76G. 

369.  (x)  Smith  v.  Alt.  Gen.  in  Chan. 

(0  3  P.  Wms.  37k  Mich.  1777  ;  6  Ves.  260;  Allan  v. 

(u)  Comber's    Case,  1    P.   Wms.  ^//an,  15  Ves.  130. 

(1)  Although  a  prerogative  administration  must  be  obtained  before 

money  can  be  paid  out  of  court,  and  in  Young  v.  Elworihy,  1  M.  &.  K.  ro^aUvo  ndmin- 
215,  !Sir  Jolin  Leach  held  that  it  was  nece.-sary  to  produce  a  prerocra-  '"''."''RZ?  ^°  '^° 

•  J  r  r  b         plaintiff. 

tive  administration  before  tlie  decree  tan  be  drawn  up;  yet  a  suit  may 
be  commenced  without  such  an  admini-ii ration,  and  cannot  be  stopped 
by  demurrer  on  account  of  that  circumstance.  Melcalfe  v.  Metcalfe, 
1  Keen,  74. 

(2)  [2  Hayward,  157.  S.  P.  as  to  an  administrator.  Macnamara  v. 
Sweetman,  1  Hogan,  29.  And  see  the  form  of  a  demurrer  in  such  a 
case,  Equity  Draft.  84.] 

17 


[156] 


182  DEMURRERS.  [ChAP.  II. 

will  liold.  Therefore,  where  a  person  claiming  as 
devisee  in  the  will  of  a  person  living,  but  a  lunatic, 
brought  a  bill  to  perpetuate  the  testimony  of  wit- 
nesses to  the  will  against  the  presumptive  heir  at 
law  {y)  ;  and  where  persons  who  would  have  been 
entitled  to  the  personal  estate  of  a  lunatic  if  he  had 
been  then  dead  intestate,  as  his  next  of  kin,  sup- 
posing him, legitimate,  brought  a  bill,  in  the  life-time 
of  the  lunatic,  to  perpetuate  the  testimony  of  wit- 
nesses to  his  legitimacy,  against  the  attorney-gen- 
eral as  supporting  the  rights  of  the  crown  (z),  de- 
murrers were  allowed.  For  the  parties  in  these 
cases  had  no  interest  which  could  be  the  subject 
of  a  suit ;  they  sustained  no  character  under  which 
]^g3  they  could  afterwards  use  the  depositions  (a),  and 

therefore  the  depositions,  if  taken,  would  have 
been  wholly  nugatory. 

So  in  every  case  where  the  plaintiff  in  a  bill 
shows  only  the  probability  of  a  future  title  upon  an 
event  which  may  never  happen  he  has  no  right  to 
[157]  institute  any  suit  concerning  it ;  and  a  demurrer 
will  hold  to  any  kind  of  bill  on  that  ground  which 
will  extend  to  any  discovery  as  well  as  to  relief  (&). 

If  the  claim  of  the  plaintiff  is  of  a  matter  in  it- 
self unlawful,  as  of  money  promised  to  a  counsellor 

(y)  Sackvillv.  Ayleworth,  I  Yera.  Ves.  133, 136. 

105  ;  1  Eq.  Cd.  Ab.  234  ;  Smit/i  v.  (a)  See  2   Prax.  Aim.  Cur.  Can. 

Watson,  \n  Chain.  20  June,  1760  ;  2  501  ;    and  see  The   Earl  of  Belfast 

Prax.  Aim.  Cur.  Cane.  500,  where  v.  Chichester,  2  Jac.  &  W.  4S9. 

there  is  the  form  of  a  demurrer.  (1).  (i)   Sackvill   v.  Aylewortk,  Vein. 

(z)  Smith  V.  Att.  Gen.  in  Chan.  105  ;   1  Eq.  Ca.  Ab.  234 ;    Smith  v, 

Mich.   1777;    6  Ves.  256,260;    15  .4«.  Gen.  Mich.  1777. 

(1)  [See  a  better  form,  note  (i),  Willis,  452.    Also  a  precedeut,  in 
Equity  Draft.  85.] 


S.  II.  p.  I.]  DEMURRERS.  183 

at  law  for  advice  and  pains  in  carrying  on  a  suit  (r) ; 
or  of  money  bequeathed  by  a  will  to  purchase  a 
dukedom  (d)  ;  the  defendant  may  demur  to  the  bill, 
for  the  plaintiff  not  having  a  lawful  claim  has  no 
title  to  sue  in  a  court  of  justice. 

There  are  grounds  of  demurrer  to  a  bill  for  a  dis- 
covery merely  as  well  as  to  a  bill  for  relief  But 
if  a  plaintiff  shows  a  complete  title,  though  a  liti- 
gated one,  or  one  that  may  be  litigated,  as  that  of 
an  administration,  where  a  suit  is  depending  to 
revoke  the  administration  (e)  ;  or  of  an  administrator 
where  there  may  be  another  personal  represent- 
ative (/);  a  demurrer  will  not  hold,  at  least  to  dis- 
covery. For  in  the  first  case,  till  the  litigation  is 
determined  the  plaintiff's  title  is  good,  and  in  the  184 

second  case,  the  court  will  not  consider  the  eccle- 
siastical court  as  haviuij  done  wrono^.  And  where 
a  doubtful  title  only  is  shown  it  is  necessarily  suffi- 
cient to  support  a  bill  seeking  the  assistance  of  the 
court  to  preserve  property  in  dispute  pending  a  liti- 
gation. Therefore  where  a  suit  was  pending  in  [158] 
an  ecclesiastical  court  touching  the  representation 
to  a  person  deceased,  a  demurrer  of  one  of  the 
parties  to  that  suit,  who  had  possessed  the  personal 
estate  of  the  deceased,  to  a  bill  for  an  account  filed 
by  the  other  party  was  overruled  (g).  The  ground 
of  this  decision  seems  to  have  been  the  deficient 
powers  of  the  ecclesiastical  court  for  securing  the  ef- 

(c)  Penrice  \.  Parker,  Rep.  Temp.  {g)  Phipps  v.    Steward,     1    Atk. 

Finch.  75  ;   and  see  Moor  v.  Rowe,  28G.     And  see  Andreics  v.  Powys, 

1  Rep.  in  Cha.  38  ;  2  Atk.  332.  2  Brown,  P.  C.  504,  Toml.  Ed.     See 

(rf)  Earl  of    Kingston  v.    Lady  also  Wills  v.  Rich,  2  Atk.  285  ;  and 

Pierepont,  1  "Vera.  5.  Morgan   v.    Harris,  31    Oct.    1786- 

(e)   Wright  V.  Blicke,  Ibid.  lOG.  Demurrer    overruled,  2   Bro.    C.  C. 

(/)  3  P.  Wms.  370.  121. 


184  DEMURRERS.  [ChAP.  II. 

fects  whilst  the  suit  there  was  depending;  and  the 
doubt  as  to  the  title  of  the  parties  was  the  very 
ground  of  the  application  to  the  court. 
vit7i^etween"'  ^-  ^  pkiutiff  may  have  an  interest  in  the  sub- 
defeildmt.  """^  ject  of  liis  suit,  and  a  right  to  institute  a  suit  con- 
cerning it,  and  yet  may  liave  no  right  to  call  on  a 
defendant  to  answer  his  demand.  This  may  be 
for  want  of  privity  between  the  plaintiff  and  defen- 
dant. Thus,  though  an  unsatisfied  legatee  has 
an  interest  in  the  estate  of  his  testator,  and  a  riorht 
to  have  it  applied  to  answer  his  demands  in  a  due 
course  of  administration,  yet  he  has  no  right  to  in- 
stitute a  suit  against  the  debtors  to  his  testator's 
estate  for  the  purpose  of  compelling  them  to  pay 
their  debts  in  satisfaction  of  his  legacy  (h)  (1). 
]^g5  For  there  is  no  privity  between  the  legatee  and  the 

debtors,  who  are  answerable  only  to  the  personal 
representative  of  the  testator ;  unless  by  collusion 
between  the  representative  and  the  debtors,  or  other 
[159]  collateral  circumstance,  a  distinct  ground  is  given 
for  a  bill  for  the  legatee  against  the  debtors  (h). 
So  a  bill  fil6d  by  the  creditors  of  a  person  who  was 
one  of  the  residuary  legatees  of  a  testator,  against 
the  executors  of  the  testator,  the  other  residuary 
legatees,  and  the  executrix  of  their  debtor,  was 
dismissed  (i)  (2). 

(rt)  Bickly     v.     Dorrington,     10  Rowley,  6  Ves.  748 ;  and  ihe  cases 

March,  1736,  Rolls,  12  Nov.   1737  ;  there  cited  and  referred  to.     9  Ves. 

Lord   Chan,  on    Appeal,  cited    Bar-  86. 

nard,  32  ;  and  6  Ves.  749  ;  Mo7ik  v.  (A)  3  Madd.  159. 

Pomfret,   cited    ibid.  ;    Alsager     v.  (i)  Elmsley  v.  M'Aulay,  3   Bro. 

(1)  [See  the  form  of  a  demurrer  in  such  a  case,  Willis,  456  ;  and 
note  (a)  there.] 

(2)  W'here  one  of  two  executors  was  a  partner  with  the  testator,  the 


S.  TI.  P.  I.]  DEMURRERS.  '  185 

But  where  an  agent  has  been  employed,  his  prin- 
cipal has  in  many  cases  a  right  to  a  discovery  of 
his  transactions,  and  to  demand  the  property  with 
which  he  has  been  intrusted,  or  the  value  of  it, 
against  those  with  whom  the  agent  has  had  deal- 
ings ;  and  therefore,  where  a  merchant  who  had  em- 
ployed a  factor  to  sell  his  goods  filed  a  bill  against 
the  persons  to  whom  the  goods  had  been  sold,  for 
an  account,  and  to  be  paid  the  money  for  which  the 
goods  had  been  sold,  and  which  had  not  been  paid 
to  the  factor,  a  demurrer  was  overruled  {k).     So  -*-°^ 

where  a  merchant  acting  upon  a  commission  del 
credere  became  bankrupt,  having  sold  goods  of. his 
principals  for  which  he  had  not  paid  them,  and 
shortly  before  his  bankruptcy  drew  bills  on  the  ven- 
dees, which  he  delivered  to  some  of  his  creditors  to 
discharge  their  demands,  they  knowing  his  insol- 
vency, a  suit  by  the  principals  was  maintained  against 
the  persons  who  had  received  the  bills  for  an  account 
and  payment  of  the  produce.  But  the  book-keeper  [l^^] 
of  the  bankrupt  having  been  made  a  party,  as  one 
of  the  persons  to  whom  bills  had  been  so  delivered, 
and  having  denied  that  fact  by  his  answer,  he  was 
not  compelled  to  answer  to  the  rest  of  the  bill, 
which,  independent  of  that  fact,  was,  as  to  him,  a 
mere  bill  for  discovery  of  evidence  (/). 

C.   C.    624.     And  see    Utlcrson  v.  {k)   Lisset  \.  Reave,  2  Alk.  39i. 

Mair,  Vernon  and  others,  on  demur-  (/)  Neuman  v.  Godfrey,  2   Uro.  C 

rer,  10  April,  1793,  2  Ves.  Jun.  05  ;  C.  332  ;  2  Ves.  Jun.  457.     See  Att. 

S.  C.  4  Bro.  C.  C.  270.  Gen.  v.   Skinner's   Comp.  5   Madd. 

residuary  legatees  may  sustain  a  bill  against  the  executors  for  an  ac-  Biiibya  reiidu- 
count  of  the  partnership  transactions,  although  collusion  between  them  against"  a  co  ex- 
is  neither  charged  nor  proved ;  for  the  rule  that  the  legatee  cannot  sue  «^^'°''^*  "*''■ 
a  debtor  to  the  estate  does  not  apply  to  a  co-executor  who  is  a  debtor 
to  the  estate.     Cropper  v.  Knapman,2  Y.  &  C.  Eq.  Ex.  338. 


186  DEMURRERS.  [ChAP.  II. 

yi.  Want  of  in       VI.  The  plaintiff  iTiust  by  his  bill  show  some  claim 

tereatin  the  de-  £  J 

fondant.  ^^  interest  in  the  defendant  in  the  subject  of  the 

snit  (m)  (1),  which  can  make  him  liable  to  the  plain- 
tiff' s  demands,  or  the  defendant  may  demur  (n). 

187  Therefore,  if  a  bill  is  filed  to  have  the  benefit  of,  or 
to  impeach  an  award,  and  the  arbitrators  are  made 
parties,  they  may  demur  to  the  whole  bill,  as  well 
to  discovery  as  relief  (o)  (1) ;  for  the  plaintiff  can  have 

[161]  no  decree  against  them,  nor  can  he  read  their  answer 
against  the  other  defendants.  Indeed,  where  an 
award  has  been  impeached  on  the  ground  of  gross 
misconduct  in  the  arbitrators,  and  they  have  been 
made  parties  to  the  suit,  the  court  has  gone  so  far 
as  to  order  them  to  pay  the  costs  {p) ;  and  probably, 

173,  particularly  at  p.  194.     But  see  Bowles  v.  Stewart,  1  Sch.  &  Lefr. 

Cookson  V.    Ellison,  2   Bro.  C.    C.  209  ;  ib.  227  ;   1  Meriv.  123.     And 

252,  and  the  other  subsequent  cases  this    observation    of    course    applies 

on  the  necessity  of  answering  fully,  more  strongly  where  the  parties  may 

See  below,  Chap.  2,  sect.  2,  part  3.  be  interested,  but  cannot  otherwise 

(m)  See  Dowlin  \.  Macdougnll,  be  made  defendants  for  want  of  pri- 

1  Sim.  &  Stu.  367.  vity.     See  3  Barnard,  32  ;  Doran  v. 

(n)  2Eq.  Ca.  Ab.  78.     There  are,  Simpson,  4  Ves.  651  ;    6  Ves.  750  ; 
however,  instances  in  which  persons  9    Ves.   86 ;    Salvidge  v.    Hyde,    5 
not  interested  in  the   subject  of  dis-  Madd.  138;   S.  C.  1  Jac.  R.  151. 
pute,  may  by  their  conduct  so  involve         (o)   Steward    v.   E-    I.    Comp.    2 
themselves  in  the  transaction  relating  Vern.  380.     See  14  Ves.  254  ;  Good- 
to  it,  that  they  may  be  held  liable  to  7nan  v.  Sayers,  2  Jac.  &  W.  249. 
costs  ;  and  under  such  circumstances         (p)  Lingood  v.   Croucher,  2   Atk* 
it  seems  they  cannot   demur  to  the  395;    Chicot    v.    Lequesne,  2    Ves. 
bill,  if  the  fraudulent  or  improper  con-  315  ;  and  the  case  of  Ward  v.  Pert- 
duct  b'  charged,  and  the  costs  be  «m,  cited  ib.  316;    1  Turn.  R.  131, 
prayed  against  them.  See  7  Ves.  288 ;  .  note  ;  Lord  Lonsdale  v.  Littledale, 
14  Ves.  252  ;   Le   Texier  v.  Mar-  2  Ves.  Jun.  451  ;  14  Ves.  252. 
gravine  of  Anspach,  15  Ves.  159  ; 

d)  A  mere  alleeation  tPiat  a  defendant  "claims  an  interest"  in  the 

Allegation  of        ^   '  "  ,      ■  i    •  .  r 

elaiming  an  in-  subject-matter,  without  showing  how  or  why  he  so  claims,  is  not  suf- 

'^* '  ficient  to  avoid  a  demurrer  on  the  ground  of  a  want  of  interest.  Plumbe 

V.  Plumbe,  4  Y.  &  C.  345. 

(2)  [See  the  form  of  such  a  demurrer,  Willis,  458.] 


S.  II.  p.  I.]  DEMURRERS.  187 

therefore,  in  such  a  case  a  demurrer  to  the  bill  would 
not  have  been  allowed.  A  bankrupt  made  party  to 
a  bill  against  his  assignees  touching  his  estate  may 
demur  to  the  relief,  all  his  interest  being  transferred 
to  his  assignees  (</)  ;  but  it  seems  to  have  been 
generally  understood,  that  if  any  discovery  is  sought  188 

of  his  acts  before  he  became  a  bankrupt,  he  must 
answer  to  that  part  of  the  bill  for  the  sake  ,of  disco- 
very and  to  assist  the  plaintiff  in  obtaining  proof, 
thouofh  his  answer  cannot  be  read  acrainst  his  as- 
signees ;  and  otherwise  the  bankruptcy  might  en- 
tirely defeat  justice  (r).  Upon  the  same  principle 
it  seems  also  to  have  been  considered,  that  where 
a  person  having  had  an  interest  in  the  subject  of 
a  bill  has  assigned  that  interest,  he  may  yet  be 
compelle'd  to  answer  with  respect  to  his  own  acts 
before  the  assignment. 

It  is  difficult  to  draw  a  precise  line  between  the 
cases  in  which  a  person  having  no  interest  may  be  L-'^^iJ 
called  upon  to  answer  for  his  own  acts,  and  those  in 
which  he  may  demur,  because  he  has  no  interest 
in  the  question.  Thus,  where  a  creditor  who  had 
obtained  execution  against  the  effects  of  his  debtor 
filed  a  bill  against  the  debtor,  against  whom  a  com- 
mission of  bankrupt  had  issued,  and  the  persons 
claiming:  as  assignees  under  the  commission  char- 

{q)   Whitworth  v.    Davis,  1   Ves.  against  liim,  he  could  not  demur,  ib. 

&  Bea.  545;    S.  C.  2  Rose,  B.  C.  and  15  Ves.  164.     See  also  King  v. 

116  ;  Bailey  v.  Vincent,  5  Madd.  48  ;  Martin,  2  Ves.  Jun.  641. 

Lloyd  y.  Lander,  5  Madd.  282  ;  (1)  (?)   Upon  this  paswage  see  I   Vea. 

but,  it    seems,   that    if    fraud    were  &  Bea.  548,  549,  550. 
charged    and     costs    were     prayed 

< 

(1)  [And  see  Willis  on  Pleading,  note  (b),  p.  458.] 


188  DEMURRERS.  [ChAP.  II. 

<Tinff  that  the  commission  was  a  contrivance  to  de- 
feat the  plaintiff's  execution,  and  that  the  debtor 
having  by  permission  of  the  plaintiff  possessed  part 
of  the  goods  taken  in  execution  for  the  purpose  of 
sale,  and  instead  of  paying  the  produce  to  the  plain- 
tiff had  paid  it  to  his  assignees,  a  demurrer  by  the 
alleged  bankrupt,  because  he  had  no  interests,  and 
might  be  examined  as  a  witness,  was  overruled, 
and  the  decision  affirmed  on  rehearing  (s).     A  dif- 

189  ference  has  also  been  taken  where  a  person  con- 
cerned in  a  transaction  impeached  on  the  ground 
of  fraud  has  been  made  party  to  a  bill  for  discovery 
merely  (t)  ;  or  as  having  the  custody  of  an  instru- 
ment for  the  mutual  benefit  of  others  (ii). 

To  prevent  a  demurrer  a  bill  must  in  many  cases 
not  only  show  that  the  defendant  has  an  interest  in 
the  subject,  but  that  he  is  liable  to  the  plaintiff's 
demands  {x).  As  where  a  bill  was  brought  upon  a 
[163]  ground  of  equity  by  the  obligee  in  a  bond  against 
the  heir  of  the  obligor,  alleging  that  the  heir  having 
assets  by  descent  ought  to  satisfy  the  bond ;  because 
the  bill  did  not  expressly  allege  that  the  heir  was 
bound  in  the  bond,  although  it  did  allege  that  the 
heir  ought  to  pay  the  debt,  a  demurrer  was  allowed 
(y)  (1).  So  where  a  bill  was  brought  by  a  lessor 
against  an  assignee  touching  a  breach  of  covenant 

(^s)  King  V.    Martin  and   others,  as  particeps  critrtinis,  m  suitport  o{  a 

25  July  1795,  rep.  2  Ves.  Juii.  641.  transaction  impeached  as  I'raudulent. 

(t)   Cotionw.  [jutir ell,  Tnn.  1738;  («)  3  Atk.  701. 

Benvet  v.    Vade,  2  Atk.  324  ;    See  (x)  See   Ryves  v.    Ryves,  3   Ves. 

above,  p.    186,   note  (n).     See  "also  343. 

B/'irfg-znan  V.  Green,  2  Ves.  627,  629,  (y)   Crosseing  v.  Honor,  I   Vern. 

as  to  the  evidence  of  a  person  charged  180. 

(1)  [See  the  form  of  such  a  demurrer,  Willis,  460.] 


S.  II.  p.  I.]  DEMURRERS.  189 

in  a  lease,  and  the  coven^^nt,  as  stated  in  the  bill, 
appeared  to  be  collateral,  and  not  running  with  the 
land,  did  not  therefore  bind  assigns,  and  was  not 
stated  by  the  bill  expressly  to  bind  assigns,  the 
assignee  demurred,  and  the  demurrer  was  al- 
lowed (z). 

VII.  If  for  any  reason  founded  on  the  substance  J[^i.  Want  oj^ti^ 

of  the  case  as  stated  in  the  bill,  the  plaintiff  is  not  p"^^^^*^' 
entitled  to  the  relief  he  prays,  the  defendant  may 
demur.     Many  of  the  grounds  of  demurrer  already  190 

mentioned  are  perhaps  referable  to  this  head ;  and 
in  every  instance,  if  the  case  stated  is  such  that  ad- 
mitting the  whole  bill  to  bettrue  the  court  ought^not 
to  give  the  plaintiff  the  relief  or  assistance  he  re- 
quires in  the  whole  or  in  part,  the  defect  thus 
appearing  on  the  face  of  the  bill  is  sufficient  ground 
of  demurrer  (^i)  (1). 

VIII.  It  is  the  constant  aim  of  a  court  of  equity    viil  want  of 
to  do  complete  justice  by  deciding  upon  and  settling 

the  rights  of  all  persons  interested  in  the  subject  of    [164] 

the  suit,  to  make  the  performance  of  the  order  of 

the  court  perfectly  safe  to  those  who  are  compelled 

to  obey  it,  and  to  prevent  future  litigation  (b).     For  General  ruie  &• 

this  purpose  all  persons  materially  interested  in  the  '°p"^^'' 

(z)  Lord  Uxhridge  v.  Staveland,  (h)  See   Knight   v.   Knight,  3  P. 

1  Vee.  56.  Wme.  331.     But  see  also  Cullen  v. 

(a)  1   Ves.  245 ;  2  Sch.   &.  Lefr.  Duke  of  Queensberry,  1  Bro.  C.  C. 

638  ;  6  M^dd.  95.  101. 


(1)  [A  demurrer  for  want  of  equity  cann't  be  snstainod,  unless  the 
court  is  satisfied  that  no  discovery  or  proof  properly  called  for  by,  or 
founded  upon  the  allegations  in  the  bill,  can  make  the  subject  matter  of 
the  suit  a  proper  case  for  equitable  cognizance.  Bleeker  v.  Bingham, 
3  Paige's  C.  R.,  246.  See  the  form  of  a  general  demurrer  for  want  of 
equity,  Willis,  461.] 


190  DEMURRERS.  [ChAP.  II. 

subject  ought  generally  to  be  parties  to  the  suit, 
plaintiffs  or  defendants,  however  numerous  they 
may  be,  so  that  the  court  may  be  enabled  to  do  com- 
plete justice  by  deciding  upon  and  settling  the  rights 
of  all  persons  interested,  and  that  the  orders  of  the 
court  may  be  safely  executed  by  those  who  are  com- 
pelled to  obey  them,  and  future  litigations  may  be 
prevented  (c)  (1). 
theSdktlon*^  This  general  rule,  however,  admits  of  many  quali- 
fications (2).  When  a  person  who  ought  to  be  a  party 

191  is  out  of  the  jurisdiction  of  the  court  (3),  tliat  fact  be- 
ing stated  in  the  bill,  and  admitted  by  the  defend- 
ants, or  proved  at  the  hearing,  is  in  most  cases  a  suffi- 
cient reason  for  not  bringing  him  before  the  court; 

(c)  3  P.  Wms.  333,  334 ;  2  Atk.     3  Ves.  &,  Bea.  182 ;  1  Sch.  &  Lefr. 
•  51  ;    7    Ves.    563 ;    12   Ves.   53 ;    1     298. 
Meriv.  262 ;  Beaumont  v.  Meredith, 


(1)  See  note  on  Parties,  at  the  end  of  the  bonk. 

(2)  [  Wendell  v.  Van  Rensselaer,  1  J.  C.  R.  349  ;  Wilson  v.  Hamil- 
toHyOii  appeal,  9  J.  R.  442  ;  Haines  v.  Beach,  3  J.  C.  R.  459;  Ens- 
worth.  V.  Lambert,  4  lb.  605  ;  Trescott  v.  Smith,  1  M'Cord's  Cha:i.  R. 
301  ;  Johnson  v.  Rankin,  2  Bibb,  184  ;  Newman  v.  Kendal,  2  Marsh. 
234;  Popev.  Malone,  lb.  240;  Hoy  v.  MMurdy,  1  LiU.  370;  Whe- 
Ian  V.  Whelan,  3  Cowen,  537 ;  Fellows  v.  Fellows,  4  lb.  682  ;  Colt  v. 
Lasnier,  9  lb.  320  ;  Edwards  tm  Parties,  1,  2,  3. 

Although  all  persons  interested  must  be  made  parlies  to  bills  for  re- 
lief, yet  this  is  not  necessary  as  to  bills  for  discovery.  Trescott  v. 
Smith,  1  M'Cord's  Chan.  R.  301.  But  see  Plunket  v.  Penson,  2 
Atk.  51.] 

One  exception  to  the  general  rule,  that  all  materially  interested  must 
be  parties,  is,  when  a  decree  in  relation  to  the  subject  matter  in  litiga- 
tion can  be  made,  without  a  person  who  has  that  interest,  having  that 
interest  iti  any  way  concluded  by  the  decree.  Where  the  party  is  not 
amenable  to  the  process  of  the  court,  or  wiiere  no  beneficial  purpose  is 
to  be  effected  by  making  him  a  party,  such  interest  mu-t  be  a  riglit  in 
the  subject  of  controversy  which  may  be  affected  by  a  decree  in  the 
suit.     Story  v.  Livingston,  1 3  Peters,  375,  6.  359. 

(3 .  See  note  on  Parties  at  the  end  of  the  book. 


S.  II.  p.  I.]  DExHURRERS.  191 

and  the  court  will  proceed  without  him  against  the 
other  parties,  as  far  as  circumstances  will  permit 
{d).  It  is  usual,  however,  to  add  the  name  of  a 
person  out  of  the  jurisdiction  of  the  court  as  a  party 
to  the  bill,  so  far  as  may  be  necessary  to  connect 
his  case  with  that  of  the  other  parties  ;  and  the  bill 
may  also  pray  process  against  him  in  case  he  should  [165] 
become  amenable  to  such  process  ;  and  if  in  fact 
he  should  become  so  amenable  pending  the  suit, 
he  ought  to  be  brought  before  the  court  either  by 
issuing  process  against  him,  if  process  should  have 
been  prayed  against  him,  and  if  not,  by  amending 
the  bill  for  that  purpose,  if  the  state  of  the  proceed- 
ings will  admit  of  such  amendment,  or  by  supple- 
mental bill  if  they  will  not  {e)  (2).  If  a  person  so 
out  of  the  power  of  the  court  is  required  to  be  an 
active  party  in  the  execution  of  its  decree,  as  where 
a  conveyance  by  him  is  necessary,  or  if  the  decree  192 

ought  to  be  pursued  against  him,  as  the  foreclosure 
of  a  mortgage  against  the  original  mortgagor,  or 
his  representative  or  assign,  the  proceedings  will  un- 
avoidably be  to  this  extent  defective  (/).     A  foreign 

(d)  1  Ves.  385;   and  see  Cowslad  parties,  the  court,  it  seems,  will   act 

V.  Celij,  Prec.   in  Chan.   83  ;    Dar-  upon  it ;  1  Sch.  &  Lefr.  240. 

wentv.  Walton,  2  Atk.    510;  Wil-  (e)  See   Haddock  v.  Thomlinson, 

Hams  V.    Whinyates,  2   Bro.    C.  C.  2  Sim.  &  Stu.  219. 

399  (1) ;  and,  if  the  disposition  of  the  (/)  Fell  v.   Brown,  2   Bro.  C.  C. 

property  be  in  the  power  of  the  other  277  ;  see  above,  p.  34. 


(1)  [Milligan  v.  Millelge,  3  Grand),  220  ;  Laviharl  v.  Reilly,  3  De- 
sau,  590.] 

(2)  Where  a  defendant  is  out  of  the  jurisdiction,  it  is  usual  and  ex-      frajcrofpro- 
pedientto  pray  that  process  may  issue  against  him  when  he  shall  come 
within  tlie  jurisdiction,  but  the  omission  of  his  namf  in  tlie  prayer  of 
process  does  not  render  the  record  defective.     Haddock  v.  Thomlinson, 
2  S.  &  S.  219. 


ceis. 


192  DEMURRERS.  [ChaP.  II. 

corporation  not  amenable  to  the  jurisdiction  of  the 
court  falls  within  this  description,  and  a  corporation 
in  Scotland    is  considered  for  this  purpose  as  a 
foreign  corporation  (g). 
General  rule  as      Whcu  thc  objcct  of  a  sult  is  to  charn^e  the  per- 

to  parties    to  a  •'  . 

the  pers'o^nar   soual  propcrty  of  a  deceased  person  with  a  demand, 
deceased  par^,  it  IS  generally  sufficient  to  biing  before  the  court 

or  a  suit  on   be-     ■.  •  i    i        i  i 

half  of  many     tlic  pcrsou  constitutCQ  bv  law  to  represent  that  pro- 
persons  in  the  *  ^  i  i 

same  interest,  pcrty,  aud  to  auswcr  all  demands  upon  it  (1)  ;  and 
the  difficulty  of  bringing  before  the  court,  in  some 
cases,  all  the  persons  interested  in  the  subject  of  a 
[166]  suit,  has  also  induced  the  court  to  depart  from  the 
general  rule  (/i),  where  the  suit  is  on  behalf  of  many 
in  the  same  interest,  and  all  the  persons  answering 
that  description  cannot  easily  be  discovered  or  as- 

dTtor^es^t^  "^'  certained  (1).  Thus  a  few  creditors  may  substanti- 
ate asuiton  behalf  of  themselvesandtheothercredi- 
tors  (1)  of  their  deceased  debtor,  for  an  account 

(g)  Att.   Gen.  v.   BaUol   Coll.  in  Ves.  321  ;  Beaumont  v.   Meredith,  3 

Ch.  10  Dec.  1744  ;  Lord  Hardicicke,  Ves.  &  Bea.  180  ;  Meux  v.  Maliby, 

as  to  the  University  of  Glasgow.  2  Swanst.  277,  and  cases  there  cited  ; 

(h)  Free,  in  Chau.  592  ;  Pearson  and   see   below,   196,   notes  («)   and 

V.   Belchier,   4   Ves.  627  ;  Lloyd  v.  (x) ;  Ellison  v.   Bignold,  2  Jac.   &. 

Louring,  %  Ves.  773  ;  11    Ves.  367  ;  W.  503;  Manning  v.    Thesiger,  1 

Adair  v.  New  River  Camp.  11  Ves.  Sim.  &  Stu.   106  ;  Gray  v.  Chaplin, 

429;   Cockburn    v.     Thompson,   16  2  Sim.  &  Stu.  267. 

(1)  See  note  on  Parties  at  the  end  of  the  book. 

[Wiser  v.  Bla-Jily,  1  J.  C.  R.  437;  Brown  v.  Rickeits,  3  lb.  553  ; 
Coll  V.  Lasnier,  9  Cowen's  R.  320.] 

Where  complainants  are  regularly  and  properly  united  in  seeking 
satisfaction  from  subj  ^cts  against  which  as  creditors  of  the  defendants, 
they  can  properly  claim,  the  bill  is  a  creditor's  bill.  It  is  not  irregular 
for  two  sets  of  creditors,  two  mercantile  firms,  to  unite  as  complainants 
in  equity,  in  a  creditor's  bill ;  and  where  some  of  the  members  of  tiiose 
firms  were  common  to  both,  the  bill  was  not  multifarious  when  filed 
against  the  personal  representatives  of  two  of  the  deceased  partners  of 
the  two  firms;  and  a'so  against  the  surviving  partner  of  one  of  the 
firms.      The    creditor   of   a    partnership    may  at   his  option  proceed 


S.  II.  p.  I.]  DEMURRERS.  193 

and  application  of  his  assets,  real  as  well  as  per- 
sonal, in  payment  of  their  demands  (1)  (/)  ;  and  the 
decree  being  in  that  case  applied  to  all  the  creditors, 
the  other  creditors  may  come  in  under  it  and  obtain 
satisfaction  of  their  demands  equally  with  the  plain- 
tiffs in  the  suit ;  and  if  they  decline  to  do  so,  they  will 
be  excluded  the  benefit  of  the  decree,  and  will  yet  be 
considered  as  bound  by  acts  done  under  its  authori- 
ty (k).     As  a  single  creditor  may  sue  for  his  demand 

(i)  2  Ves.  313  ;  Law  v.  Rigby,  4         (i)  See  Good  v.  Blewitt,  19  Ves. 
Bro.  C.  C.  60  (1).  336,  and  Angell  v.  Haddon,  1  Madd. 

R.  529  (3). 


at  lnw  aizainst  the  surviving  partner,  or  jro  in  the  first  instance  into 
equity  against  the  representatives  of  deceased  partner.  It  is  not  neces- 
sary for  him  to  exhaust  his  remedy  at  law  against  tlie  surviving  part- 
ner before  proceeding  in  equity  agiinst  the  estate  of  the  deceased.  Nel- 
son et  al.  V.  Hill  et  alb  Howard  R.  127.  131.  133,  4. 

(1)  But  in  this  as  in  all  other  cases  where  some  persons  may  come 
into  court  as  plaintiffs  for  themselves,  and  others  having  similar  inte- 
rests, those  who  by  name  bring  the  suit  and  constitute  the  parties  on 
record  must  have  themselves  an  interest  in  the  subject  matter  which 
enables  them  to  sue,  and  the  others  are  treated  as  a  kind  of  co-plain- 
tiffs, though  not  named ;  but  whereas  in  case  of  a  public  corporation 
filing  a  bill  on  behalf  of  themselves  and  the  citizens  of  the  place, 
alleging  a  public  nuisance  and  a&king  an  injunction,  it  was  held,  the 
corporation  not  havinij  shown  that  they  were  Ihe  owners  of  the  pro- 
perty liable  to  be  afiected  by  the  nuisance  and  were  so  affected,  so 
as  that  they  had  suffered  a  special  damage,  and  not  merely  as  a  corpo- 
rate autliority  to  take  care  of  and  protect  the  interests  of  the  citizens, 
had  no  such  interest  as  enabled  them  to  sue  in  their  own  name.  Cil]] 
of  Georgetown  v.  Alexandria  Canal  Comjany,  <SfC.,  12  Peters,  91. 

(2)  [Hendricks  v.  Robinson,  2  J.  C.  R.  283  ;  Brown  v.  Ricketls,  3  lb. 
553;  Brinkerhojf  \ .  Brown,  6  lb.  139;  see  the  last  case  considered  in 
Felloios  V.  Fellows,  4  Cowen's  R.  i:82;  and  see  Fish  v.  Howland,  1 
Page's  C.  R.  20;  Egberts  v.  Wood,  3  Paige's  C.  R.  617;  Burney  v. 
Morgan,  I  S.  &  S.  358.] 

(3)  [And  see  Neve  v.  Weslon,  3  Atk.  557;  Young  v.  Everest,  1 
Russ.  &  M.  426  ;  Shubrick  v.  Shubrick,  1  M'Cord's  C.  R.  407.  To 
enable  a  creditor  to  come  in  under  a  decree  and  prove  a  claim  which 
is  not  stated  or  referred  to  in  the  ph.adings  or  proofs  in  the  cause,  he 


193  DEMURRERS.  [ClIAP.  IL 

out  of  personal  assets,  it  is  rather  matter  of  conveni- 
enccthan  of  indulgence  topermitsuch  a  suitbyafew 
•  on  behalf  of  all  the  creditors  ;  and  it  tends  to  pre- 
vent several  suits  by  several  creditors,  which  might 
be  highly  inconvenient  in  the  administration  of 
assets,  as  well  as  burthensome  on  the  fund  to  be 
[167]  administered  ;  for  if  a  bill  be  brought  by  a  single 
creditor  for  his  own  debt,  he  may  as  at  law  gain  a 
preference  by  the  judgment  in  his  favour  over  other 
creditors  in  the  same  degree,  who  may  not  have 
used  equal  diligence  (I). 

But  some  of  a  number  of  creditors,  parties  to  a 
trust-deed  for  payment  of  debts,  have  been  per- 
mited  to  sue  on  behalf  of  themselves  and  the  other 
194  creditors  named  in  the  deed  for  execution  of  the 

trust  (??^),  although  one  of  those  creditors  could  not 
in  that  case  have  sued  for  his  single  demand  without 
bringing  the  other  creditors  before  the  court.  This 
seems  to  have  been  permitted  purely  to  save  ex- 

(I)  See  Att.  Gen.  v.  Cornthwaite,  (m)  Carry  v.  Trist,  1  Dec.  1766  ; 

2  Cox,  R.  44 ;  an  instance  of  a  bill  Routh    v.  Kinder,  3   Swanst.    144, 

by   a  single    creditor  (1).      And  see  n. ;    Boddy  v.  Kent,  1  Meriv.  301 ; 

Haycock  v.  Haycock,  2  Ca.  in  Cha.  Weld    v.  Bonham,    2    Sim.  &  Stu. 

124;  Bedford  v.  Leigh,  Dick.  707  ;  91  ;  Handford  v.  Slorie,  2  Sim.   & 

Hall  V.  Binney,  6  Ves.  738.  Stu.  196. 

should  present  the  particulars  of  liis  claim  to  the  master,  accompanied 
by  his  affidavit  in  support  thereof.  In  this  affidavit,  the  claimant  must 
swear  either  positively  or  according  to  his  information  and  belief,  that 
the  amount  claimed  is  justly  due  as  set  forth  in  the  particular  of  his 
claim,  and  that  neither  the  claimant,  nor  any  person  by  his  order  or  to  his 
knowledge  or  belief  for  his  use  hath  received  the  amount  thus  claimed 
or  any  part  thereof  or  any  security  or  satisfaction  whatsoever  for  the 
same  or  any  part  thereof,  Morris  v.  Mowatt,  4  Paige  C.  R.  142,  and 
see  Rule  105,  N.  Y.  Chancery.] 

(1)   [And  see  Hendricks  v.  Robinson,  2  J.  C.  R.  283;   Corning  v. 
White,  1  Paige's  C.  R.  567.] 


S.  II.  p.  I.]  DEMURRERS.  194' 

peiise  and  delay.  If  a  great  number  of  creditors, 
thus  specially  provided  for  by  a  deed  of  trust,  were 
to  be  made  plaintiffs,  the  suit  would  be  liable  to 
the  hazard  of  frequent  abatements;  and  if  many 
were  made  defendants,  the  same  inconvenience 
might  happen,  aud  additional  expense  would  un- 
avoidably be  incurred. 

By  analogy  to  the  case  of  creditors,  a  legatee  is  b "legatees.' *'** 
permitted  to  Sue  on  behalf  of  himself  and  other  lega- 
tees (1)  ;  and  as  he  might  sue  for  his  own  legacy  only, 
a  suit  by  one  on  behalf  of  all  the  legatees  has  the 
same  tendency  to  prevent  inconvenience  and  expense 
as  a  suit  by  one  creditor  on. behalf  of  all  creditors  of  . 
the  same  fund  (n) ;  but  in  a  suit  by  a  single  legatee 
for  his  own  legacy,  unless  the  personal  representative  [looj 
of  the  testator,  by  admitting  assets  for  payment  of 
the  legacy,warrants  an  immediate  personal  decree 
against  hnnself,  by  which  he  /ilone  will  be  bound (<?), 
the  court  will  direct  a  generrl  accountof  all  the  lega- 
cies of  the  same  testator,  and  payment  of  the  legacy 
claim  ratably  only  with  the  other  legacies,  no  pre- 
ference being  allowed  amongst  legatees  in  the  ad- 
ministration of  assets  (  p) . 

(«)  6  Ves.  779  ;  and  see  Morse  v.  the   residuary  legatees,  (see   1   Vern. 

Sadler,  1  Cox,  R.  352  (2).  261  ;    Wainwright  v.   Waterman,  1 

(o)  See  Boys  v.  Ford,  4  Madd.  40.  Ves.  Juii.  311  ;  1  Madd.  R.  448,)  nor 

(p)   To  a  bill  by  a  specific  or  pecu-  generally,  (see  2  Ca.  in  Cha.  124  (3)  ; 

niary  legatee    for    payment,  neither  and  see  Morse  v.  Sadler,  1  Cox,  R. 


(1)  See  note  on  Parties  at  the  end  of  the  book. 

(2)  [Brown  v.  Ricketts,  3  J.  C.  R.  563  ;  Fish  v.  llowland,  1  Paige's 
C.  R.  20  ;  Priichard  v.  Hicks,  lb.  270 ;  Ross  v.  Crary,  lb.  416  ;  IlaileU 
V.  Hallelt,  3  lb.  15.] 

(1)  Also  lb.  228  ;  West  v.  Randall,  2  Mason's  R.  181  ;  Fritchard  v. 
Hicks,  1  Paige's  C.  R.  270. 


195 


DEMURRERS. 


[Chap.  II. 


When  the  court  has  pronounced  a  decree  for  an 
account  and  payment  of  debts  or  legacies  under 
which  all  creditors  or  legatees  may  claim,  it  will  re- 
strain subsequent  proceedings  by  a  separate  creditor 
or  legatee,  either  at  law  or  in  equity,  as  the  just  ad- 
ministration of  the  assets  would  be  greatly  embar- 
rassed by  such  proceedings  {p). 

by^pariswone?!!  Whorc  all  tho  inhabitants  of  a  parish  had  rights 
of  common  under  a  trust,  a  suit  by  one  on  behalf  of 
[169]  himself  and  the  other  inhabitants  was  admitted  (</). 
It  has  been  doubted  whether  the  attorney-general 
ought  not  to  have  been  a  party  to  that  suit  (r),  and 
accordingly,  on  a  bill  filed  by  some  of  the  sufferers  by 
a  fire  against  the  trustees  of  a  collection  made  for 
the  sufferers  generally,  it  was  objected  at  the  hearing, 
that  the  attorney-general  ought  to  have  been  a  party, 
and  that  otherwise  the  decree  would  not  be  con- 
clusive :  and  the  cause  was  accordingly  ordered  to 

196  stand  over  for  the  purpose  of  bringing  the  attorney- 

general  before  the  court  (s).  But  where  a  bill  was 
brought  for  distribution  of  private  contributions  the 


352),  any  other  of  the  legatees,  need 
be  made  parties ;  but  on  such  a  bill 
by  one  of  several  residuary  legatees, 
he  must  in  general  bring  before  the 
court  all  the  other  persons  interested 
in  the  residue,  after  satisfaction  of 
the  creditors  and  the  specific  and 
pecuniary  legatees.  2  Ca.  in  Cha. 
124  ;  Parsons  v.  Neville,  3  Bro.  C.  C. 
365;  16  Ves.  328.  And  see  1  Sim. 
&  Stu.  106. 

(p)  1  Sch.  &-  Lefr.  299,  and  cases 
cited  there,  in  note  .(6)  ;  and  see 
Douglas  V.  Clay,  Dick.  393  ;  Brooks 
V  Reynolds,  Dick.  603  ;  S.C.I  Bro. 
C.  C.  183  ;    Rush  v.  Higgs,  4  Ves. 


638  ;  Paxton  v.  Douglas,  8  Ves.  520 ; 
Terrewest  v.  Featherhy,  2  Meriv. 
480 ;  Ciirrie  v.  Bowyer,  3  Madd.  456 ; 
Parrel  v.  Smith,  2  Ball  &  B.  337 ; 
1  Jac.  R.  122;  Lord  v.  Wortnleigh- 
ton,  1  Jac.  R.  148. 

iq)  1  Ca.  in  Cha.  269.  Blackham 
V.  the  Warden  and  Society  of  Sut- 
ton Coldfield.  See  Att.  Gen.  v. 
Heelis,  2  Sim.  &  Stu.  67. 

(r)  See  Att.  Gen.  v.  Moses,  2 
Madd.  R.  294. 

(s)  Overall  v.  Peacock,  6  Dec. 
1737.  See  Wellbeloved  v.  Jones, 
1  Sim.  &  Stu.  40. 


S.  II.  p.  I.]  DEMURRERS.  196 

objection  that  the  attorney-general  was  not  a  party 
was  overruled  (t)  (1). 

For  the  application  of  personal  estate  amongst  b'l'n'ex°ofto 
next  of  kin,  or  amongst  persons  claiming  under  a  oth^era^ciafS 
general  description,  as  the  relations  of  a  testator  or  deBcription!"^'* 
other  persons,  where  it  may  be  uncertain  who  are 
all  the  persons  answering  that  description,  a  bill 
has  been  admitted  by  one  claimant  on  behalf  of 
himself  and  the  other  persons  equally  entitled  (u)  (1), 
and  the  necessity  of  the  case  has  induced  the  court, 
especially  of  late  years,  frequently  to  depart  from 
the  general  rule,  where  a  strict  adherence  to  it     ["1701 
would  probably  amount  to  a  denial  of  justice  ;  and 
to  allow  a  few  persons  to  sue  on  behalf  of  great 
numbers  haying  the  same  interest  (x)  (1). 

(<)  Lee  V.  Carter,  17  Nov.  1740,  312;    Pearson  v.  Belchier,  4    Ves. 

MS.  N.  reported  2  Atk.  84;  but  this  627  ;  Lloyd  v.  Loaring,  6  Ves.  773  ; 

point  is  not  noticed  by  Atkyus.    Nutt  Good -v.  Blewitt,  13  Yes.  39T;  Cock- 

V.  Brown,  20  July  1745  ;   Anon.  3  burn  v.   Thompson,  16  Ves.  321 ;  3 

Atk.  227 ;  1  Sim.  &  Stu.  43.     The  Meriv.  510 ;  Manning  v.  Thesiger, 

attorney  or  sohcitor-general  is  usually  1  Sim.  &  Stu.  106  ;  Baldwin  v.  Law- 

a  necessary  party  to  suits  relating  to  rence,  2  Sim.    &   Stu.    18  ;  Gray  v. 

charity  funds.     See   Wellbeloved  v.  CAop/Jn,  2  Sim.  &,  Stu.  267  (3) ;  but 

Jones,  1  Sim.  &  Stu.  40;  and  above,  it  seems  that  except,  perhaps,  in  the 

pp.  23,  120.  common    cases    of   this    kind,  it    is 

(u)  See  Ambl.  710 ;    1   Russ.  R.  necessary  to  allege  that  the  parties 

166  (2).  are  too  numerous  to  be  individually 

(x)    Chancey    v.    May,    Free,    in  named.  Weld  v.  Bonkam,  2  Sim.  & 

Chan.  592  (Finch  Ed.) ;  Gilb.  230  ;  Stu.  91  ;  see,  however.  Van  Sandau 

1  Atk.  284;  Leigh  v.  Thomas,  2  Ves.  v.  Moore,  1  Russ.  R.  441  (4). 


(1)  See  note  on  Parties  at  the  end  of  the  book. 

(2)  [But  for  the  practice  in  ordinary  cases,  see  note  (o),  on  the  last 
page. 

(3)  [S.  C.  on  appeal,  2  Russ.  126;   Hallelt  v.  Hallelt,  2  Paige's 
C.  R.  16.] 

(4)  [Also  Hitchens  v.  Congreie,  1  Sim.  600 ;    S.  C.  on  appeal,  4 
Rubs.  662 ;    Wendell  v.  Van  Rensselaer,  1  J.  C.  R.  349.     And  such 

18 


196  DEMURRERS.  [ChAP,  II^ 

There  are  also  other  cases  in  which  the  interests 

197  of  persons  not  parties  to  a  suit  may  be  in  some- 
degree  affected,  and  yet  the  suit  has  been  permitted 
to  proceed  without  them,  as  a  bill  brought  by  a 
lord  of  a  manor  against  some  of  the  tenants,  or  by 
some  of  the  tenants  against  the  lord,  on  a  question 
of  common  ;  or  by  a  parson  for  tithes  against  some 
of  the  parishioners,  or  by  some  of  the  parishioners 
against  the  parson,  to  establish  a  general  parochial 
modus  {x). 

Persons  conse-      In  mauy  cases  the  expression  that  all  persons  in- 

quentially    inte-  J  i  ^        ^ 

rested;  tercstcd  iu  the  subject  must  be  parties  to  a  suit,  is 

not  to  be  understood  as  extending  to  all  persons  who 

[1711     '^^y  ^^  consequentially  interested.     Thus,  in  the 

as  creditors,  ^ase  of  a  bill  which  may  be  brought  by  a  single 
creditor  for  satisfaction  of  his  single  demand  out 
of  the  assets  of  a  deceased  debtor,  as  before  no- 
ticed (1),  although  the  interest  of  every  other  un- 

(jp)  1  Atk. 283 ;  3  Atk.  247 ;  C//ay-  representing    a    numerous    class,  as 

tor  V.  Trin,  Coll.  Anst.  841;  11  Ves.  against  churchwardens  representing 

444  ;  and  see   Adair  v.  New  River  the     parishioners    in    respect    of    a 

Comp.  11  Ves.  429  ;  16  Ves.  328;    1  church-rate,  it  must  be  alleged  that 

jac.  &  W.  369  ;  2Swanst.  282;  but  the  suit  is  brought   against  tliem  in 

it  appears  that  where  it  is  attempted  such      representative     character.    5 

to  proceed  against  some  individuals  Madd.  13. 

bill  may  be  filed  by  some,  even  though  the  illegal  acts  complained  of 
may  be  sanctioned  by  the  majority.     Bromley  v.  Smith,  1  Sim.  8. 

Some  of  the  members  of  a  partnership  cannot  file  a  hill,  on  behalf 
of  themselves  and  the  others  for  a  dissolution  of  the  parti.ership;  but 
all  the  member?,  however  numerous,  must  be  parties  to  the  suit.  Lrmg 
V.  Yunge,  2  Sim.  369 ;  and  see  Macmdhon  v.  Upton,  lb.  473.  As  where 
one  of  several  partnei's  received  a  mortgage  in  his  own  name  for  a 
partnership  debt,  and  afterwards  brought  a  bill  in  his  separate  capacity 
to  foreclose  the  equity  of  redemption  : — i/eZJ,  on  demurrer,  that  the. 
other  partners  ought  to  have  joined.  Noyes  v.  Sawyer,  3  Vermont  R. 
160.] 

(1)  [At  page  166.] 


S.  II.  p.  I.]  DEMURRERS.  197 

satisfied  creditor  may  be  consequentially  affected 

by  the  suit,  yet  that  interest  is  not  deemed  such  as 

to  require  that  the  other  creditors  should  be  parties  ; 

notwithstanding,  the  decree  if  fairly  obtained  \yill 

compel  them  to  admit  the  demand  ascertained  under  19s 

its  authority  as  a  just  demand,  to  the  extent  allowed 

by  the  court  in  the  administration  of  assets;  but 

they  will  not  be  bound  by  any  account  of  the  assets 

taken  under  such  a  decree.     So  in  all  cases  of  bills  terested  after 

payment  of 

by  creditors  or  legatees,  the  persons^entitled  to  the  ^^^^  ^""^  ^^s*- 
personal  assets  of  a  deceased  debtor  or  testator, 
after  payment  of  the  debts  or  legacies,  are  not 
deemed  necessary  parties,  though  interested  to 
contest  the  demands  of  the  creditors  and  legatees : 
and  if  the  suits  be  fairly  conducted,  they  will  be 
bound  to  allow  the  demands  admitted  in  those  suits 
by  the  court,  though  they  will  not  be  bound  by  any 
account  of  the  property  taken  in  their  absence  (//). 

To  a  bill  to  carry  into  execution  the  trusts  of  a  to*^arry  Sito?:^ 
will  disposing  of  real  estate  by  sale  or  charge  of  trusts  or » wm. 
the  estate,  the  heir  at  law  of  the  testator  is  deemed 
a  necessary  party,  that  the  title  may  be  quieted 
against  his  demand  (1)  ;  for  which  purpose  the  bill 
usually  prays  that  the  will  may  be  established  against     [172] 
him  by  the  decree  of  the  court ;  but  if  the  testator 
has  made  a  prior  will  containing  a  different  disposi- 
tion of  the  same  property,  and  which  remains  un- 
cancelled, and  has  not  been  revoked  except  by  the 

(y)  See  the  case  q{  Bedford  v.  wrig?U\.  Waterman,  I  Vea.  Jx3\3  ; 
Leigh,  Dick.  707.  And  see  Lawson  Brown  v.  Dowf'waite,  1  Madd.  R. 
V.  Barker,  1  Bro.  C  C.  303 ;  Wain-    448. 


(1)  See  note  on  Parties  at  the  end  of  the  book. 


igQ  DEMURRERS.  [ChAP.  II. 

subsequent  will,  it  has  not  been  deemed  necessary 
to  make  the  persons  claiming  under  the  prior  will 
parties  ;  though  if  the  subsequent  will  be  not  valid, 
those  persons  may  disturb  the  title  under  it  as  well 
199  as  the  heir  of  the  testator.     If,  however,  the  prior 

will  is  insisted  upon  as  an  effective  instrument  not- 
withstanding the  subsequent  will,  the  persons  claim- 
ing under  it  maybe  brought  before  the  court,  to  quiet 
the  title,  and  protect  those  who  may  act  under  the 
orders  of  the  court  in  executing  the  latter  instru- 
ment (z). 

If  no  heir  at  law  can  be  found,  the  king's  attorney- 
general  is  usually  made  a  party  to  a  bill  for  carrying 
the  trusts  of  a  devise  of  real  estate  into  execution, 
supposing  the  escheat  to  be  to  the  crown,  if  the  will 
set  up  by  the  bill  should  be  subject  to  impeach- 
ment («).  But  if  any  person  should  claim  the 
escheat  against  the  crown,  that  person  may  be  a 
necessary  party. 

If  the  heir  at  law  of  a  testator  who  has  devised  a 
real  estate  on  trusts  should  be  out  of  the  jurisdiction 
[173]  of  the  court,  and  that  fact  should  be  charged  and 
proved,  the  court  will  proceed  to  direct  the  execution 
of  the  trusts  upon  full  proof  of  the  due  execution  of 
the  will  and  sanity  of  the  testator  ;  though  that  evi- 
dence cannot  be  read  against  the  heir  if  he  should 
afterwards  dispute  the  will,  and  the  court  therefore 

(z)  See    OQ  the  general    subject,  (a)  See  the  case  of  Att.  Gen.  v. 

Harris  v.  Ingledew,  3  P.  Wms.  91  ;  Mayor  of  Bristol,  3  Madd.  319 ;  /S.  C. 

Lewis  V.  Naugle,  2  Ves.  431 ;  1  Ves.  2  Jac.  &  W.  294. 
Jun.  29  (1). 

(1)  [Also  Jackson  v.  Radford,  4i  Price,  274;  Fordham  v.  Rolfe,  1 
Tamlyns,  C.  R.  1 ;   Wiser  v.  BlacJdy,  1  J.  C.  R.  437.] 


S.  II.  p.  I.]  DEMURRERS.  199 

cannot  establish  the  will  against  him,  or  in  any  man- 
ner ensure  the  title  under  it  against  his  claims  (b)  (1). 

Where  real  property  in  question  is  subject  to  an  200 

entail,  it  is  ffenerally  sufficient  to  make  the  first  the  property  u 

-    .     ,         .  subject  to  sue- 

person  in  being,  in  whom  an  estate  of  mheritance  cesaive  estates. 
is  vested,  a  party  with  those  claiming  prior  interests, 
omitting  those  who  may  claim  in  remainder  or  re- 
version after  such  vested  estate  of  inheritance  (c)  ; 
and  a  decree  against  the  person  having  that  estate  of 
inheritance  will  bind  those  in  remainder  or  rever- 
sion, though  by  failure  of  all  the  previous  estates  the 
estates  then  in  remainder  or  reversion  may  after- 
wards vest  in  possession  (d).  It  has  therefore  been 
determined  that  a  person  so  entitled  in  remainder? 
and  afterwards  becoming  entitled  in  possession,  may 
appeal  from  a  decree  made  against  a  person  having 
a  prior  estate  of  mheritance,  and  cannot  avoid  the 
effect  of  the  decree  by  a  new  bill  (e). 

Contingent  limitations  and  executory  devises  to 
persons  not  in  being  may  in  like  manner  be  bound 
by  a  decree  against  a  person  claiming  a  vested  estate  [174] 
of  inheritance  ;  but  a  person  in  being  claiming  under 
a  limitation  by  way  of  executory  devise,  not  subject 
to  any  preceding  vested  estate  of  inheritance  by 

(h)  See  Williams  v.  Whinyates,  2  518  ;  S.  C.  3  Bro.  P.  C.  204,  Toml.  Ed. 

Bro.  0.  C.  399 ;  and  see  French  v.  (d)  See  Lloyd  v.  Johnes,  9  Ves. 

Baron,  2  Atk.  120 ;  S.  C.  Dick,  138.  37  ;  16  Vea.  326. 

(c)  2  Sch.  &  Lefr.  210  ;  and  see  (e)  Giffard  v.  Hort,  1  Sch.  &  Lefr. 

Anon.  2  Eq.  Ca.  Ab.   166;  2   Ves.  386,  ib.  411. 
492 ;  Pelham  v.  Gregory,  1  Eden,  R. 

(1)  A  decree  for  establishing  a  will  and  executing  the  trusts  thereof,  gj^  ^    heirlm. 
may  be  impeached  by  an  original  bill  by  the  heir  at  law  in  case  ho  was  peaching  a  de- 

1-1  1  111  1    r       1  1       cree  establighing 

not  served  with  a  subpoena,  though  named  as  a  party  detendant  to  the  a  win. 
bill  in  the  cause  in  which  such  decree  was  made.     He  need  not  file  a 
supplemental  bill  in  that  cause.     Walertoii  v.  Croft,  6  Sim.  431. 


200  DEMURRERS.  ^         [ChAP.  II. 

which  it  may  be  defeated,  must  be  made  a  party  to 
a  bill  affecting  his  rights  (/)  (1). 
*01  If  a  person  entitled  to  an  interest  prior  in  limita- 

tion to  any  estate  of  inheritance  before  the  court, 
should  be  born  pending  the  suit,  that  person  must 
be  brought  before  the  court  by  a  supplementary  pro- 
ceeding. And  if  by  the  determination  of  any  con- 
tingency a  new  interest  should  be  acquired,  not 
subject  to  destruction  by  a  prior  vested  estate  of 
inheritance,  the  person  having  that  interest  must  be 
brought  before  the  court  in  like  manner.  And  if 
by  the  death  of  the  person  having,  when  the  suit 
was  instituted,  the  first  estate  of  inheritance,  that  es- 
tate should  be  determined,  the  person  having  the  next 
estate  of  inheritance,  and  all  the  persons  having  prior 
interests,  must  be  so  brought  before  the  court  (g). 
Jspe^L^re^  Trustccs  of  real  estate  for  payment  of  debts  or 
^\h  payment  of  logacics  may  sustain  a  suit,  either  as  plaintiffs  or  de- 
fendants, without  bringing  before  the  court  the  cre- 
ditors or  legatees  for  whom  they  are  trustees,  which 
in  many  cases  would  be  almost  impossible  ;  and  the 
rights  of  the  creditors  or  legatees  will  be  bound  by 
the  decision  of  the  court  against  the  trustees  (k)  (1). 

(/)  See  Handcockv.  Shaen,. CoW.         (h)  See  Franco  v.  Franco,  3  Yea. 

P.  C.  122;  and  Anon.  2  Eq.  Ca.  Ab.  75;  and  see   Curteis  v.  Candler,  6 

166;  Sherrit  v.  Birch,  3  Bro.  C.  C.  Madd.  123.      [Bifield  v.   Taylor,  1 

229.  Beatty's  R.  91.] 

(jg)  See  2  Sch.  &  Lefr.  210. 


(1)  See  note  on  Parties  at  the  end  of  the  book. 

(1)  In  Harrison  v.  Stewardson,  Sir  James  Wigram,  V.  C,  observed, 
"  It  is  impossible  to  say  that  the  practice  of  the  court  is  in  conformity 
with  this  passage ;  for  almost  the  universal  rule  is  to  make  legatees 
parties  where  legacies  are  charged  on  real  estate."  2  Hare,  532. 
And  see  note  on  Parties  at  the  end  of  the  book. 


.S.  II.  p.  I.]  DEMURRERS.  201 


Tenants. 


The  interests  of  persons  claiming  under  the  pos- 
session of  a  party  whose  title  to  real  property  is  dis-  r2^75i  202 
pnted,  as  his  occupying  tenants  (1),  under  leases, 
are  not  deemed  necessary  parties  ^,  though  if  he  had 
a  legal  title,  the  title  which  they  may  have  gained 
from  him  cannot  be  prejudiced  by  any  decision  on 
his  rights  in  a  court  of  equity  in  their  absence  ;  and 
though  if  his  title  was  equitable  merely,  they  may 
be  affected  by  a  decision  against  that  title  (1).  Some- 
times, if  the  existence  of  such'rights  is  suggested  at 
the  hearing,  the  decree  is  expressly  made  without 
prejudice  to  those  rights,  or  otherwise  qualified 
according  to  circumstances.  If  therefore  it  is  in- 
tended to  conclude  such  rights  by  the  same  suit,  the 
persons  claiming  them  must  be  made  parties  to  it ;  ^"•''^'"^ancera. 
and  where  the  right  is  of  a  higher  nature,  as  a 
mortgage,  the  person  claiming  it  is  usually  made  a 
party  {i)  (2). 

T,.         ,  •  /»  1  •  Persons  enhtled 

o  a  suit  lor  the  execution  or  a  trust,  by  or  against  to  prior  charges, 

~  or  to    a  surplus 

those  claiming  the  ultimate  benefit  of  the  trust,  after  afterpayment  of 

o  '  prior  charges. 

the  satisfaction  of  prior  charges,  it  is  not  necessary 
to  bring  before  the  court  the  persons  claiming  the 
benefit  of  such  prior  charges  ;  and  therefore,  to  a  bill 
for  the  application  of  a  surplus  paid  after  payment 
of  debts  and  legacies,  or  other  prior  incumbrance,  the 

(/)  See  2  Ves.  450.     [Also  Capis  v.  Middleton,  2  Madd.  R.  410.] 


(1)  [Where  a  receiver  is  appointed,  the  ordinary  direction  is  that 
the  tenant  attorn.  Jf  application  be  made  to  persons  to  attorn,  and 
thoy  refuse,  the  course  is  not  to  maiie  tliem  parties:  but  to  move  that 
they  should  attorn;  and  then  such  persons  must  come  in  and  inform 
the  court  whether  they  are  tenants  or  not.  lieid  v.  Middleton,  1  Turn. 
A  R.  455.] 

(2)  See  note  on  Parties  at  the  end  of  the  book. 


202  DEMURRERS.  [ChAP.  II. 

creditors,  legatees,  or  other  prior  incumbrancers, 
need  not  be  made  parties  (k)  (1).  And  persons 
having  demands  prior  to  the  creation  of  such  a  trust 
may  enforce  those  demands  against  the  trustees 
without  bringing  before  the  court  the  persons  in- 

203  terested  under  the  trust,  if  the  absolute  disposition 
of  the  property  is  vested  in  the  trustees  (1).     But 

L17dJ     if  ^}|e  trustees  have  no  such  power  of  disposition,  as 

in  the  case  of  trustees  to  convey  to  certain  uses,  the 

persons  claiming  the  benefit  of  the  trust  must  also 

Persons  having  \)q  partics  (2).     Pcrsous  having  specific  charges  on 

specific   charges  i  \     /  o      i  o 

entrust  proper-  ^^  trust-propcrty  iu  mauy  cases  are  also  necessary 
parties  ;  but  this  will  not  extend  to  a  general  trust 
for  creditors  or  others  whose  demands  are  not  dis- 
tinctly specified  in  the  creation  of  the  trust,  as 
their  number,  as  well  as  the  difficulty  of  ascertain- 
ing who  may  answer  a  general  description,  nlight 
greatly  embarrass  a  prior  claim  against  a  trust- 
property  (Z). 
Parties  to  a  suit  If  a  debt  by  a  covenant  or  obligation  binding  the 
sets  of  a  debtor,  heir  of  thedcbtoris  demanded  against  his  real  assets 

{k)  See  Anon.  3  Atk.  572.     [Also  2  Sim  &  Stu.  184  (3).     It  may  here 

Calverley  v-  Phelp,  6  Madd.    228;  be  observed,  that  if  the  trust-property 

James  v.  Biou,  2  S.  &  S.  600  ;   Wal-  be  personal,  and  its  amount  be  ascer- 

lace  V.  S7nith,  1  Beatty,  385.]  taiued,  one  entitled  to  an  aliquot  part 

(P  As  to  cestui  que  trusts  being  thereof  may  sue  the  trustees  for  the 

parties,  see  Kirk  v.   Clark,  Free,  in  same,  without   making    the  persons 

Chan.  275  ;  Adams  v.  St.  Leger,  1  claiming    the    other    shares    thereof 

Ball  &  B.  181  ;  Calverly  v.  Phelp,  parties  to  the  suit.     Smith  v.  Snow, 

6  Madd.  229  ;  Douglas  v.  Horsfall,  3  Madd.  10  (1). 

(1)  See  note  on  Parties  at  the  end  of  the  book. 

(2)  [Fish  V.  Howland,  1  Paige's  C.  R.  20.] 

(3)  Malin  v.  Malin,  2  J.  C.  R.  238 ;  Hickock  v.  Srribner,  3  J.  C. 
311  ;  Johnson  v.  Hart,  lb.  322;  Elliotts  executor  v.  Drayton,  3  Desau^ 
C.  R.  29;    Taylor  v.  Mayrant,  4  lb.  505;    Marshall  v.  Beverly,  &■ 
Wheaton,  313.] 


S.II.  p.  I.]  DEMURRERS.  203 

in  the  hands  of  a  devisee  under  the  statute  3  &  4 

W.  &  M.  c.  14,  the  heir  must  always  be  a  party  (?n) ; 

and  if  any  assets  have  descended  to  the  heir  they 

are  first  applicable,  unless  the  assets  devised  are 

charged  with  debts  in  exoneration  of  the  heir.     The 

personal  representative  of  the  deceased  debtor  is  204 

also  generally  a  necessary  party  (??-),  as  a  court  of 

equity  will  first  apply  the  personal,  in  exoneration 

of  the  real  assets  (2).     When  there  has  been  no     [177] 

.  Limited   admin- 

ffeneral  personal  representative,  a   special  repre-  istrator.andper- 

C3  1  I  '11  Bonal    represen- 

sentative  by  an  administration  limited  to  the  subject  ^^l]^  En°giMi* 
of  the  suit  has  been  required.  In  other  cases  where 
a  demand  is  made  against  a  fund  entitled  to  ex- 
oneration by  general  personal  assets,  if  there  are 
any  such,  a  like  limited  administrator  is  frequently 
required  to  be  brought  before  the  court.  This 
seems  to  be  required  rather  to  satisfy  the  court  that 
there  are  no  such  assets  to  satisfy  the  demand  :  for 
although  the  limited  administrator  can  collect  no 
such  assets  by  the  authority  under  which  he  must 
act,  yet  as  the  person  entitled  to  general  admini- 
stration must  be  cited  in  the  ecclesiastical  court  be- 
fore such  limited  administration  can  be  obtained, 
and  as  the  limited  administration  would  be  deter- 
mined by  a  subsequent  grant  of  general  administra- 
tion, it  must  be  presumed  that  there  are  no  snch 

(m)  Gawler  v.  Wade,  1  P.  Wms.  (n)  Knight  v.  Knight,  3  P.  Wms. 
100 ;  Warren  v.  Stawell,  2  Atk.  331 ;  3  P.  Wms.  350  ;  3  Atk.  406  ; 
125  (1).  1  Eq.  Ca.  Ab.  73  ;  Doice  v.  Farlie, 

2  Madd.  R.  101  ;  2  Sim.  &,  Stu.  292. 


(1)  See  the  Revised  Statutes  of  the  State  of  N.  Y.,  as  to  suits  by 
creditors  against  heirs.     2d  vol.  p.  464,  J  42,  et  seq.] 

(2)  See  note  on  Parties  at  the  end  of  the  book. 


S04  DEMURRERS.  [ChAP.  II. 

assets  to  be  collected,  or  a  general  administration 
would  be  obtained  (o)  (3). 
205  The  personal  representative  thus  brought  before 

the  court  must  be  a  representative  constituted  in 
England  ;  and  although  there  may  be  personal  as- 
sets in  another  country,  and  a  personal  representa- 
tive constituted  there,  yet  as  he  may  not  be  amen- 
able to  the  process  of  the  court,  and  those  assets 
must  be  subject  to  administration  according  to  the 
[178]  laws  of  that  country,  such  a  representative  is  not 
deemed  a  necessary  party  to  substantiate  a  demand 
against  the  real  assets  in  England  (p)  (3). 

Where  a  claim  on  property  in  dispute  would  vest 
in  the  personal  representative  of  a  deceased  person, 
and  there  is  no  general  personal  representative  of 
that  person,  an  administration  limited  to  the  subject 
of  the  suit  may  be  necessary  to  enable  the  court  to 
proceed  to  a  decision  on  the  claim  ;  and  when  a 
right  is  clearly  vested,  as  a  trust-term  which  is  re- 
quired to  be  assigned,  an  administration  of  the 
effects  of  the  deceased  trustee  limited  to  the  trust- 

(0)  See  the  case  of  Glass  v.  Oxen-  cution,  by  virtue  of  stat.  38  Geo.  III. 
Jiam,  2  Atk.  121  (1).  Where  probate  c.  S7.  Rainsford  v.  Taynton,  7  Ves. 
has  been  granted,  and  the  executor     460  (2). 

has  subsequently  departed  out  of  the         (p)   See  Jauncy  v.  Sealey,  1  Vern. 

realm,  a  special  administration  may,  397  ;  and  Lowe  v.  Farlie,  2  Madd.  R. 

after  twelve  months  from  the  decease  101 ;  Logan  v.  Farlie,  2  Sim.  &  Stu. 

of  the  testator,  be  obtained  to  defend  284. 
a  suit,  or  to  carry  a  decree  into  exe- 

(1)  See  also  Colt  v.  Lasnier,  9  Cowen's  R.  320.] 

(2)  [Provision  is  made  by  the  Revised  Statutes  of  the  Stite  of  New- 
York  for  the  appointment  of  an  administrator  with  the  will  annexed 
upon  the  departure  or  incompetency  of  an  executor.  2d  vol.  72,  J  18, 
19,  20,  21,  22.] 

(3)  See  note  on  Parties  at  the  end  of  the  book. 


S.  II.  p.  I.]  DEMURRERS.  205 

term  is  necessary  to  warrant  the  decree  of  the  court 
for  assignment  of  the  term. 

In  some  cases,  when  it  has  appeared  at  the  hear-  fteT^^onJl-S 
mg  or  a  cause,  that  the  personal  representative  or  a  a  party  to  a  mh. 
deceased  person,  not  a  party  to  the  suit,  ought  to 
be  privy  to  the  proceedings  under  a  decree,  but 
that  no  question  could  arise  as  to  the  rights  of  such 
representative  on  the  hearing,  the  court  has  made  a 
decree  directing    proceedings    before  one  of  the  206 

masters  of  the  court,  without  requiring  the  repre- 
sentative to  be  made  a  party  by  amendment  or  other- 
wise ;  and  has  given  leave  to  the  parties  in  the  suit 
to  bring  a  representative  before  the  master  on  taking 
the  accounts  or  other  proceedings  dii'ected  by  the 
decree,  which  may  concern  the  rights  of  such  re- 
presentative ;  and  a  representative  thus  brought  be-  [179] 
fore  the  master  is  considered  as  a  party  to  the  cause 
in  the  subsequent  proceedings  {p). 

In  most  cases  the  person  having  the  legal  title  in  Legal  owner. 
the  subject  must  be  a  party,  though  he  has  no  bene- 
ficial interest,  that  the  legal  right  may  be  bound  by 
the  decree  of  the  court  {q)  (1).  Thus  if  a  bond  or  A8«ignor. 
judgment  be  assigned,  the  assignor  as  well  as  the 
assignee  must  be  a  party,  for  the  legal  right  of  ac- 
tion remains  in  the  assignor  (r). 

(p)  See  Fletcher  v.  Ashhurner,  1  (r)  See  Cathcart  v.  Leicis,  1  Ves. 

Bro.  C.  C.  497  ;  I  Ves.  Jun.  69.  Jun.  463  ;  but  see  Brace  v.  Harring- 

(7)  As  to  the  case  of  a  trustee,  see  ton,  2  Atk.  235  ;  and  Blake  v.  Jones, 

Prec  in  Chan.  275 ;  3  Barnard,  325  ;  3  Anstr.  651.     See  also  Ryan  v.  An- 

Burt  V.  Dennet,  2  Bro.  C.  C.  225  ;  7  derson,  3  Madd.  1 74  ;  Edney  v.  Jew- 

Ves.   11;  Cholmondeley  \.    Clinton,  ell,  6   Madd.  165;    2   Sim.  &  Stu. 

2  Meriv.  71.  253  (2). 

(1 )  See  note  on  Parlies  at  the  end  of  the  book. 

(2)  [Also  Edmestnn  v.  Lyde,  I  Paige's  C.  R.  637;  Saunders  v. 
Macey,  4  Bibb's  R.  458,  643 ;  Allen  v.  Crockett,  lb.  240 ;  and  see  Ed- 
wards on  Parties,  81.] 


206  DEMURRERS.  [ChAP.  IL 

teSewhoare      In  some  casGS,  however,  it  may  still  remain  a 
neceesary  par-   g^gg^-j^jj  of  Considerable  difficulty  who  are  necessary 

parties  to  a  suit.  It  may  indeed  be  doubtful  until 
the  decision  of  the  cause  what  interests  may  be 
affected  by  that  decision ;  and  sometimes  parties 
must  be  brought  before  the  court  to  litigate  a  ques- 
tion, who  had,  according  to  the  decision,  no  inter- 

207  est  in  the  subject  ;  and  as  to  whom  therefore, 
whether  plaintiffs  ordefendant,  the  bill  maybe  finally 
dismissed,  though  the  court  may  make  a  decree  on 
the  subject  as  between  other  parties,  which  will  be 
conclusive  on  the  persons  as  to  whom  the  bill  may 
be  so  dismissed,  but  which  the  court  would  not 
pronounce  in  their  absence,  if  amenable  to  its  juris- 
diction. " 

sid't'lth^b'^"'      Sometimes,  too,  a  plaintiff,  by  waiving  a  parti- 
waivingaciaim.  (.yj^j.  c]aijjj^  jj^^y   avoid  tho   ucccssity  of  making 

parties  who  might  be  effected  by  it,  though  that 
[180]  claim  might  be  an  evident  consequence  of  the  rights 
asserted  by  the  bill  against  other  parties.  This 
however,  cannot  be  done  to  the  prejudice  of 
others  (1). 
want^^f"JStie8  Wheucver  a  want  of  parties  appears  on  the  face 
of  a  bill,  the  want  of  proper  parties  is  a  cause  of 


(1)  [The  examples  given  by  Lord  Redesdale,  as  to  parties,  amount 
to  merely  a  tithe  part  of  the  reported  cases,  and  embrace  only  some 
of  the  leadiiig  principles  in  relation  to  them.  The  subject  is  a  wide 
and  most  important  one  ;  and  has  been  attempted  to  be  reduced  to  prac- 
tical use  by  Charles  Edwards,  Esq.,  On  Parties  to  Bills  and  other  Plead- 
ings in  Chancery.  For  a  collection  of  English  and  American  cases, 
see  note  on  Parties  at  the  end  of  the  book.  See  also  Calvert  on  Par- 
ties to  Bills  in  Ciiancery,  a  valuable  English  treatise  on  that  subject 
v?hich  has  recently  passed  to  a  second  edition. 


S.  II.  p.  I.]  DEMURRERS.  207 

demurrer  (s)  (2).  But  if  a  sufficient  reason  for  not 
bringing  a  necessary  party  before  the  court  is 
suggested  by  the  bill  (3)  ;  as  if  a  personal  repre-  208 

sentative  is  a  necessary  party,  and  the  representa- 
tions charged  to  be  in  litigation  in  the  ecclesias- 
tical court  (t) ;  or  if  the  bill  seeks  a  discovery  of 
the  parties  interested  in  the  matter  in  question  for 
the  purpose  of  making  them  parties,  and  charging 
that  they  are  unknown  to  the  plaintiff;  a  demur- 
rer for  want  of  the  necessary  parties  will  not 
hold  (u). 

(s)  Clark  V.  Lord Angier,  1  Ca.  in  (1).     Qwrere,  whether  a  demurrer  for 

Chan.  41 ;  Nels.  R.  78,  93  ;  Astleyv.  want  of  parties  should  be  to  the  whole 

Fountaine,  Finch,  R.  4;   Weston  v.  bill.     See  E.  I.  Company  v.  Coles, 

Keighley,  Finch,  R.  82 ;  Atwood  v.  reported  3   Swanst.  142,  note ;  and 

Hawkins,  Finch,  R.  113;  Galle  v.  see  the  cases  of  ^<«)oo J  v.  i/aicA'in^, 

Greenhill,  Finch,  R.  202  ;  3  P.  Wms.  Finch,  R.  113  ;  Astley  v.  Fountaine, 

311,  note;  Knight  v.  Knight,  3  P.  Finch,  R.  4;  and  Bressenden  v.  De- 

Wms.  331 ;  2  Atk.  570;  1  Eq.  Ca.  creets,  2  Ca.  in  Chan.    197,  cited  3 

Ab.  72 ;  2  Eq.  Ca.  Ab.  165 ;  Cock-  Swanst.  144,  note. 

hurnv.  Thompson,  16  Ves.  321;  Cook  (t)  2  Atkyns,  51;  and  see  Jones 

V.  Butt,  6  Madd.  53  ;  Weld  v.  Bon-  v.  Frost,  3  Madd.  1. 

Jiam,  2  Sim.   &  Stu.  91;    Gray  v.  (u)  Bowyer  v.  Covert,  lYera.  95; 

Chaplin,  2  Sim.  &  Stu.  267 ;  Maule  Heath  v.  Percival,  1   P.  Wms.  682, 

V.  Duke  of  Beaufort,  1  Russ.  R.  349  684. 


(1)  Crane  v.  Deming,  7  Day,  387;  Mitchell  v.  Lenox,  2  Paige's  C. 
R.  280 ;  Robinson  v.  Smith,  3  lb.  222.] 

(2)  Elmendorf  V.  Taylor,  10  Wheat.  152.  See  the  form  of  a  de- 
murrer for  want  of  parties,  Willis,  462,  and  note  (b)  there.] 

But  if  the  objection  do  not  appear  on  the  face  of  the  bill,  the  proper 
mode  to  take  advantage  of  it  is  by  plea  or  answer.  If  a  misjoinder  of 
complainants  by  demurrer  or  answer,  it  is  too  late  to  urge  a  formal 
objection  of  this  kind  at  hearing.  Story  v.  Livingston,  13  Peters,  375, 
360. 

(3)  In  order  to  dispense  with  making  a  person  a  defendant,  it  is  not    Allocation  as  to 

sufficient  to  allege  that  he  absconded  a  year  before  the  bill  was  filed  ;  P"8o° ,  hoving 

"=  •'  '  absconded. 

for  he  might  have  returned  before  the  filing  of  the  bill.     Pen/old  v. 

JNunn,  5  Sim.  405. 


nousnesB. 


208  DEMURRERS.  [ChAP.  II. 

ref^oug^t^T"^'  -A-  demurrer  for  want  of  parties  must  show  who 
?e  VoplTr  par-  arc  the  proper  parties :  not  indeed  by  name,  for 
[1811  that  might  be  impossible  ;  but  in  such  manner  as 
to  point  out  to  the  plaintiff  the  objection  to  his  bill, 
and  enable  him  to  amend  by  adding  the  proper 
parties  (x)  (1).  In  case  of  a  demurrer  for  want  of 
parties,  the  court  has  permitted  the  plaintiff  to 
amend,  when  the  demurrer  has  been  held  good 
upon  argument  {y)  (3). 
IX.  Muitifa-  IX.  The  court  will  not  permit  a  plaintiff  to  de- 
mand, by  one  bill,  several  matters  of  different  na- 
tures against  several  defendants  (z)  ;  for  this  would 
tend  to  load  each  defendant  with  an  unnecessary 
burthen  of  costs,  by  swelling  the  pleadings  with 
the  state  of  the  several  claims  of  the  other  defend- 
ants, with  which  he  has  no  connection.  A  defend- 
ant may  therefore    demur,  because    the    plaintiff 

(x)  Upon  this  subject  see  6  Ves.         (y)  Bressenden  v.  Decreets,  2  Ch. 
781;  11  Ves.  369;    16  Ves.  325;  3     Ca.  197. 
Madd.  62.  '    (z)  See  5  Madd.  146  (3). 


(1)  Lund  V.  Blanshard,  4  Hare,  23. 

(2)  See  the  form  of  a  demurrer  for  want  of  parties.  Equity  Draft. 
81 ;  Edwards  on  Parlies,  275.] 

(3)  Garlick  v.  Sirong,  3  Paii:e's  C.  R.  440.  It  was  said,  in  Gibbs 
V.  Cldgett,  2  Gill  &.  Johns.  14,  that  the  ground  of  multifariousness 
should  be  raised  by  a  demurrer,  before  answer ;  and  that  filing  an 
answer  and  going  into  testimony  was  a  waiver  of  the  objection.  S.  P. 
Ward  V.  Cooke,  5  Madd.  122. 

[A  party  in  a  divorce  cause,  cannot  set  up  cruelty  and  adultery,  and 
pray  for  a  separation  from  bed  and  board  for  ever,  and  also  for  a  decree 
dissolving  the  marriage  contract.  A  demurrer  would  hold  to  such  a 
bill,  on  the  ground  of  multifariousness.  This  has  been  distinctly  de- 
cided by  Chancellor  Walworth,  in  Smith  v.  Smith,  4  Paige  92.  And 
the  bill  was  ordered  to  be  dismissed,  with  costs,  to  be  paid  by  the  next 
friend.  The  same  rule  had  been  laid  down  by  V.  C.  M'Coun,  in  Mulock 
V.  Mulock,  1  Edwards'  V.  C.  Rep.  14.] 


S.  II.  p.  I.]  DEMURRERS.  20^ 

demands  several  matters  of  different  natures  of 
several  defendants  by  the  same  bill  {a)  (4).     But 

(a)  Berke  v.  Harris,  Hardr.  337  94 ;    Exeter    Coll.  v.   Rowland,    6 

(1).     And,  as  late   instances  of  de-  Madd.  94 ;  Kaye  v.  Moore,  1  Siin.  & 

inurrers  for  multifariousness,  see  VVartZ  Stu.  61;   Deu>  v.  Clarke,  1  Sim.  &> 

V.  Cooke,  5  Madd.  122;  Salvidge  v.  Stu.  108;  Turner  v.  Robinson,  1  Sim. 

Hyde,  5  Madd.  138 ;  S.  C.  1  Jac.  R.  &  Stu.  313  (2),  and  Skackell  v.  Ma- 

153  ;   Turner  v.  Doubleday,  6  Madd.  caulay,  2  Sim.  &  Stu.  79  (3). 


(1)  [Fellows  V.  Fellows,  4  Cowen's  R.  682.  The  rule  that  multifa- 
rious matters  shall  not  be  joined  in  the  same  suit,  is  a  rule  of  conve- 
nience, lb.  See  in  connection  with  this  case,  Brinkerhoff  \.  Brown, 
6  J.  C.  R.  139. 

To  a  demurrer  for  charging  several  and  distinct  matters  against 
several  defendants,  a  party  demurring  must  join  a  denial  of  combina- 
tion, although  the  bill  charges  it  only  formally.  Roih  v.  Butler,  Ver- 
non &L  Scriven's  (Irish)  R.  85;  Paul  v.  Forbes,  lb.  376.  If  a  bill  be 
liable  to  be  dismissed  for  multifariousness,  it  ought  to  be  dismissed  in 
iota,  and  not  be  made  the  foundation  of  partial  relief.  Gibbs  v.  Clagett, 
supra-l 

(li)  [Vice-Chancellor  Shadwell,  in  Marcos  v.  Pebrer,  3  Sim.  466, 
said,  he  could  not  coincide  with  the  decision  in  this  case  of  Turner  v. 
Robinson,  (S.  C.  6  Madd.  94 ;)  as  he  could  not  see  how,  consistently 
with  the  rules  of  the  court,  tiie  personal  estate  of  A.  could  be  joined  in 
the  same  suit  with  the  personal  estate  of  B. ;  that  there  might  be  ques- 
tions respecting  the  personal  estate  of  B.  with  which  the  parties  in- 
tere.~ted  in  the  personal  estate  of  A.  were  not  at  all  concerned  ;  and 
that,  therefore,  he  did  not  think  he  was  bound  to  adopt  the  principle  of 
Turner  v.  Robinson.] 

(3)  [Dunn  v.  Dunn,  2  Sim.  329  ;  Wynne  v.  Callender,  1  Russ.  293, 
297  ] 

(4;  See  the  form  of  a  demurrer  for  multifariousness,  Willis,  464; 
Equity  Draft,  422  ;   Sim.  &-  Stu.  79- 

JNo  rule  can  be  laid  down  as  to  what  constitutes  multifariousness  as 
an  abstract  proposition ;  eacb  case  must  depend  on  its  own  circum- 
stances and  the  cuurt  must  exercise  a  sound  discretion  where  the  in- 
terests of  the  companies  were  so  mixed  up  in  all  the  transactions,  that 
entire  justice  could  scarcely  be  done,  at  least  not  conveniently  done, 
witlmut  a  union  of  the  proprietors  of  both  companies  ;  and  if  they  had 
not  been  joined  the  bill  would  have  been  open  to  the  opposite  objection, 
that  all  the  proper  parties  ueie  not  before  the  court  so  as  to  enable  it 
to  make  a  final  and  conclusive  decree  touching  all  their  interest  several 
as  well  as  joint,  it  was  held  that  the  bill  was  in  no  just  sense  multifa- 


209  DEMURRERS.  [ChAP.  II. 

as  the  defendants  may  combine  together  to  de- 

rious.  Thus,  a  party  cannot  in  the  same  bill  seek  a  divorce  for  extreme 
cruelty  and  adultery.  The  decree  is  very  different  in  the'  two  cases. 
In  one  case  the  parties  are  only  separated,  the  other  the  marriage  is 
dissolved  and  the  parties  at  liberty  to  remarry.  Defendant  might  be 
surprised  by  a  bill  framed  with  these  two  aspects  and  left  in  uncer- 
tainty as  to  what  ground  the  complainant  meant  ultimately  to  rest  on. 
The  case  in  Saxton  474,  shows  that  the  Chancellor  only  tolerated  a 
bill  thus  framed  because  no  exception  was  taken,  and  the  reasoning  in 
6  Johns.  Ch.  163,  is  as  applicable  under  the  New-Jersey  statute  as  un- 
der that  of  New-York,  so  blending  with  the  application  for  decree  a 
prayer  for  independent  relief  grounded  on  charges  that  require  answer 
on  oath  is  improper.  The  answer  to  a  bill  for  divorce  by  New-Jersey 
statute  cannot  be  under  oath,  while  in  all  other  cases  it  must.  This 
on  a  bill  framed  as  above  would  require  two  answers  to  one  bill,  one 
with  and  the  other  without  oath.  But  in  a  bill  for  divorce  a  prayer 
for  alimony  may  be  inserted  and  any  charges,  made  in  it  respecting 
property  which  might  affect  that  question,  would  be  proper.  Decamp 
V.  Decamp,  1  Green,  296-7,  294.  • 

But  to  render  the  bill  multifarious  the  matters  must  be  not  only  sepa- 
rate and  distinct,  but  each  of  a  character  entitling  complainant  to  sepa- 
rate equitable  relief.  It  is  not  multifarious  if  it  set  up  one  sufficient 
ground  for  relief  and  state  another  on  which  no  relief  can  be  had. 
Then  defendant  should  demur  to  the  defective  part  and  answer  the ' 
other,  or  object  to  the  former  on  hearing.  If  a  bill  be  multifarious  it 
cannot  be  demurred  to  on  that  account,  unless  the  prayer  be  also  mul- 
tifareous.  Pleasants  <^  Co.  v.  Glasscock  et  al,  1  Smedes  &  Marshall, 
Ch.  R.  Miss.  24,  17,  on  authority  of  Varick  v.  Smith,  5  Paige  R. 
137 ;  Dick  v.  Dick,  1  Hogan,  290. 

Where  two  give  mortgages  on  their  separate  property  to  secure  a 
joint  note,  blending  the  foreclosures,  was  held  on  demurrer,  not  multi- 
farious, and  that  decree  to  foreclose  both  could  be  rend' red.  Wilcox 
et  al.  v.  Mills  et  al..  Id.  87,  86.  The  mortgages  were  made  to  secure 
the  same  debt  and  are  but  incident  tQ  the  debt.  Defendant  could  have 
compelled  the  union  of  the  two,  and  complainant  would  not  be  permit- 
ted to  coerce  payment  by  two  foreclosures  when  one  would  answer. 
Ibid.  But  if  the  objection  was  tenable  it  cannot  be  insisted  on  by  the 
parties  at  the  hearing.  The  objection  of  multifariousness  cannot  as  a 
matter  of  right  be  taken  by  the  parties  except  by  demurrer,  or  plea,  or 
answer,  and  if  not  so  taken,  it  is  deemed  to  be  waived.  But  it  may 
at  any  time  be  taken  by  the  court  sua  sponte,  whenever  it  is  deemed  by 
the  court  to  be  necessary  or  proper  to  assist  it  in  the  due  administra- 
tion of  justice.     Oliver  et  al.  v.  Piatt,  3  How.  411,  412,  383.     Gaines 


S.  II.  p.  I.]  DEMURRERS.  209 

fraud  the  plaintiff  of  his  rights,  and  such  a  com- 
bination is  usually  charged  by  a  bill,  it  has  been 
held  that  the  defendant  must  so  far  answer  the 
bill  as  to  deny  combination  (h).  In  this  however,  [182] 
the  defendant  must  be  cautious;  for  if  the  answer 
goes  farther  than  merely  to  deny  combination,  it 
will  overrule  the  demurrer  (c)  (1).  A  demurrer  of 
this  kind  will  hold  only  where  the  plaintiff  claims 
several  matters  of  different  natures  (2) ;  but  when 

(6)  Powell  V.   Arderne,   1    Vern.  Lord    Whitworth,   1   Made).  R.  86; 

416.     As  to  the  interpretation  to  be  Salvidge    v.   Hyde,   5    Madd.    138. 

put  upon  this  passage,  see  8  Ves.  527;  And  the  ultimate  decision  in  the  lat- 

and  as  to  general  charge  of  combi-  ter  case  upon  appeal,  reversing  the 

nalion,seesup.  pp.  43,  44.     The  pro-  former,  does  not  appear  to  have  had 

position  in  the  text,  however,  bo  far  as  any  reference   to   that  proposition  ; 

it  may  applj'  to  the    usual  general  S.  C.  1  Jac.  151. 

charge  of  combination,  seems  now  (c)  Hester  y.  Weston,  I  Vera.  463. 
to  have  been  overruled.     Brooks  v. 

el  ux.  V.  Chew  el  aL,2  Id.  619 ;  McLean,  assignee,  v.  Bank  of  Lafayette, 
3  Mc  Lean's  R.  418,  et  seq.-  (where  the  authorities  are  reviewed,)  415. 
Interests  wholly  distinct  and  separate  cannot  be  united.  The  reason 
is  that  individuals  ought  not  to  be  subjected  to  expense  and  delay  of 
investigating  matters  in  which  they  have  no  common  interest.  That 
the  pleading  in  chancery  should  rather  conform  to  the  simplicity  of 
pleadings  at  law.  But  there  is  no  absolute  rule,  as  above  mentioned. 
McLean,  &.c.  ib. 

So  a  hill  filed  by  the  executors  of  an  estate,  and  all  those  who  pur- 
chased from  the  m,  is  not  upon  that  account  alone,  multifarious.  Gaines 
V.  Chew,  2  How.  619. 

But  where  one  sues  as  administrator  and  mixes  up  his  own  claim 
with  that  in  his  representative  capacity,  it  is  demurrable.  Two  bills 
would  be  necessary.     Carter  v.  Treadwell,  3  Story  Rep.  513. 

So,  if  a  joint  claim,  against  two  or  more  defendants  is  improperly 
joined  in  the  same  bill  with  a  separate  chtim  against  one  of  those  de- 
fendants only,  in  which  the  other  defendants  have  no  interest,  and 
which  is  wholly  unconnected  with  the  claim  against  them,  all  or  either 
of  the  defendants  may  demur  to  the  whole  hill  for  multifariousness. 
Swift  V.  Eclford,  executor,  cf-c,  et  al,  6  Paige  R.  28,  22. 

(1)  See  note,  pige  248. 

(2)  fThuB,  an  infant  heir  and  only  son  of  an  intestate  joined  with 

19 


209  DEMURRERS.  [ChAP.  IL 

one  general  right  is  claimed  by  the  bill,  though 
the  defendants  have  separate  and  distinct  rights, 
a  demurrer  will  not  hold  (d).     As  where  a  person 

210  claiming  a  general  right  to  the  sole  fishery  of  a 
river,  filed  a  bill  against  several  persons  claiming 
several  rights  in  the  fishery,  as  lords  of  manors, 
occupiers  of  lands,  or  otherwise  (e).  For  in  this 
case  the  plaintiff  did  not  claim  several  separate 
and  distinct  rights,  in  opposition  to  several  sepa- 
rate and  distinct  rights  claimed  by  the  defendants; 
but  he  claimed  one  general  and  entire  right,  though 
set  in  opposition  to  a  variety  of  distinct  rights  claimed 
by  the  several  defendants.  So  where  a  lord  of  a 
manor  filed  a  bill  against  more  than  thirty  tenants 
of  the  manor,  freeholders,  copyholders,  and  lease- 
holders, who  owed  rents  to  the  lord,  but  had  con- 
fused the  boundaries  of  their  several  tenements, 
praying  a  commission  to  ascertain  the  boundaries  : 
and  it  was  objected  at  the  hearing  that  the  suit 

ri831  ^^^  improper,  as  it  brought  before  the  court  many 
parties  having  distinct  interests  ;  it  was  answered, 
that  the  lord  claimed  one  general  right,  for  the 
assertion  of  which  it  was  necessary  to  ascertain 
the  several  tenements,  and  a  decree  was  made  ac- 
cordingly (/)  (1). 

((f)  See  the  cases  cited  above,  pp.  (e)   Mayor  of  York  v.  Pilkington, 

169,  170.     And  see  Buccle  v.  Atleo,     1  Atk.  282. 

2*Vern.37.     As  to  cases  of  infringe-  (/)  Magdalen  Coll.  v.  Alhilland 

ment  of  copyrights  and  puteuts,  see  others,  at  the  Rolls,  2G  Nov.  1753. 
DiUy  V.  Doig,  2  Ves.  Jun.  486.  See  the  distinctions  taken  iu  Berke 

V.  Harris,  Hardres,  337. 

his  sisters  in  a  bill  a.ainst  their  mother,  the  administratrix,  for  an  ac- 
count of  ihe  intestate's  real  and  personal  estate:  demurrer  for  multi- 
fariousness allowed.  Dunn  v.  Dunn,  2  Sim.  329.  Similar  error, 
Maud  V.  Acklom,  lb.  331.]     See  note  supra. 

(1)   Cases  where  a  bill  is  multifarious. — It  is  not  allowable  to  unite 


S.  II.  p.  I.]  DEMURRERS.  211 

As  the  court  will  not  permit  the  plaintiff  to  de-  eauals""^  "^ 
mand  by  one  bill  several  matters  of  different  natures 

in  the  same  information  an  application  as  to  abuses  in  a  school  with  Trusts  both  of  a 
an  application  as  to  abuses  in  a  college,  though  the  1  itter  are  abuses  \lgg°  ^  °*'°  ' 
in  relation  to  estates  given  to  the  college  for  the  benefit  of  five  scholars 
from  the  school ;  for  the  school  and  the  college  are  distinct  foundations, 
and  one  defence  cannot  be  made.as  to  the  abuses  in  both.     Atlorney- 
General  v.  St.  John's  College,  7  Sim.  241. 
Two  or  more  distinct  matters  cannot  be  included  in  the  same  suit,  Jpi"in?  distinct 

chanties  m   the 

where  it  does  not  clearly  appear  that  they  are  homogeneous,  with  the  information 

exception  of  minute  differences,  even  in  the  case  of  a  sole  pkintifi'  company?^"*** 

and  a  sole  defendant.     So  that  where  an  information,  after  stating  a 

will  by  which  property  was  gi\en  to  a  city  company,  for  the  purpose 

of  making  loans  to  young  men  free  of  the  company,  to  assist  them  in 

trade  and  otherwise,  alleges  that  divers  other  donations  and  bequests 

have  been  made  to  the  company  for  the  purpose  of  making  loans  to 

young  men  (generally  and  without  restriction)  for  their  advancement 

in  business  and  life,  and  it  prays  relief  in  respect  of  the  first-mentioned 

and  such  other  gifts  and  bequests,  it  is  multifarious.     Altoriuy-General 

V.  The  Goldsmilhs'  Company,  5  Siin.  670. 

If  a  person,  who  is  the  personal  representative  both  Of  a  testator  Account  both  of 
and  of  the  testator's  residuary  devisee  and  legatee,  files  a  bill  against  alestate.^^""'* 
an  agent  for  an  account  of  the  rents  of  the  real  estate  and  of  the  per- 
sonal  estate,  received  by  such  agent  since  the  testator's  death,  the  bill 
is  multifarious.      Weeks  v.  Pill,  10  Law  J.  (N.  S.)  Ch.  Rep.  6. 

And  so  where  the  heir,  who  is  also  one  of  the  next  of  kin,  of  an 
intestate,  joins  with  the  other  next  of  kin  in  a  bill  against  the  adminis- 
tratrix, who  has  entered  into  possession  of  the  real  estate,  as  well  us 
the  personalty,  for  an  account  of  the  intestate's  real  and  personal 
estates,  the  bill  is  demurrable  for  multifariousness.  Dunn  v.  Dunn,  2 
Sim.  329;  see  also  Maud  v.  Aclom,  ib.  331. 

The  union  of  an  equitable  ejectment  bill  against  one  person,  and  a  EqnitRbte  eject- 
bill,  to  redeem  against  another  person,  is  multifarious.     Plumbe  v.  JJi^L"o"n*  ^'^' 
Plumbc,  4  Y.  &  C.  Eq.  Ex.  345. 

A  bill  for  a  discovery  and  a  commission  or  commissions  to  examine  niscovpry  »nd 
witnesses  in  aid  of  the  defence  to  two  separate  actions  for  two  sepa-  auTlTf^the" de- 
rate libels,  is  multifarious  and  demurrable.     For  if  the  same  coinmis-  '^"'=''1:''  '''°"n' 

tiiins  for  twoU- 

sion  or  commissions  were  to  furnish  the  defence  for  both  actions.the    bela. 
plaintitf  at  law  would  be  delayed  from  proceeding  in  either  of  the  ac- 
tions until  the  defendants  were  prepared  for  their  defence  in  both. 
Shackiil  v.  Macaulay,  2  S.  &  S.  79. 
If  a  vendor  files  a  bill  against  a  purcha-er  for  a  specific  performance      pppVinp,  in  a 

of  the  purchase  contract,  and  in  the  same  bill  prays  that  another  defen-  *"''  ''^  "  ^t-ndor 

'^     '  lor  speciiic  per- 


212  DEMURRERS.  [ChAP.  II. 

against  several  defendants,  so  it  will  not  permit  a 
bill  to  be  brought  for  part  of  a  matter  only  ;  but 

formance,  n  fui-  (lant  who  has  agreed  with  the  vendor  to  execute  a  release,  in  order  to 
another  agree-  perfect  the  title,  may  be  decreed  to  execute  such  release,  the  bill  is  mul- 
tbiTd  person  to  '^•'^*'''0"s  •  f"""  ^^6  purchaser  ought  not  to  be  harassed  with  a  distinct 
enable  the  ven-  agreement  between  the  vendor  and  a  third  person,  althougfh  such  acree- 

dor  to  perfect       ^  ,•,,,-  ,  r  r    ,  , 

the  title.  ment  was  designed  to  be  subservient  to  the  performance  of  the  purchase 

contract.     Reynolds  v.  Johnston,  7  Law  J.  (O.  S.)  Ch.  Rep.  45. 
Bill  for  an  ac-        ^  bill  for  an  account  of  a  testator's  e  tate,  and  also  to  set  aside  sales 

count  and  lor 

avoiding  sales,     made  by  the  e.Necutor  and  trustee  to  himself  and  another  person,  is 

multifarious.     Salvidge  v.  Hijde,  Jac.  151. 
Md^edemptfon'!      ^  ^"^^  ^^^^  ^^^  "^®  administration  of  general  personal  estate  and  for 

the  redemption  of  a  mortgage  is  multifarious.     Pearse  v.  Hewitt,  7 

Sim.  471. 
Bill  of  revivor  o{      jf  (q  a  foreclosure  suit,  a  third  person,  who  has  some  interest  in  the 

a  toreclosure  '  r  ' 

suit  introducing  equity  of  redemption,  is  made  a  party ;  and  in  a  bill  of  revivor  siipple- 

B  question  lis  to  ^    ,  ,^        •      •    »       i  i         •  i  r  .  i-  i    ■         i  . 

a  lien  claimed     niental  matter  is  introduced,  with   reference  to  a  lien  claimed  by  the 

by  a  mortgagor-  mortgagor  on  land  in  the  mortgagee's   possession  which  was  allotted 

to  the  mortgagor  in  respect  of  the  mortgaged  premises,  such  a  bill  is 

multifarious  as  regards  such  third  person.     Lloyd  v.  Douglas,  4  Y.  & 

C.  Eq.  Ex.  448. 

Mixing  up  dis-       Where  a  bill  is  not  sustainable  as  a  bill  of  interpleader,  and  it  mixes 
tinct  claims.  ...  ,.  ^im  iri  ., 

up  drstinct  claims  of  dinereiit  defendants,  although  connected   with 

the  same  subject-matter,  it  is  multifarious.     Bignold  v.  Audland,  11 

Sim.  24. 

debti"d^^e^t'''^d°/      ^  '^''^  praying  for  a  declaration  that  a  person  to  whose  nominee  two 

feient persona,     debts  due  to  different  creditors  have  been  assigned  may  be  declared  a 

trustee  of  such  debts  for  another  party,  and  may  be  restrained  from 

proceeding  at  law  upon  judgments  obtained  for  them,  is  demurrable 

for  multifariousness.     Miller  v.   Walker,  9  Jur.  107. 

Account  of  two       A  bill  for  an  account  of  agencies  with  two  different  firms,  though 

agencies.  carrying  on  the  same  concern,  and  only  different  by  reason  of  a  chanse 

of  some  of  the  partners,  is  multifarious,  if  the  allegations  of  the  bill 
are  such,  that,  when  taken  most  strongly  against  the  plaintiff,  they 
show  that  the  dealings  with  the  two  firms  were  separate  transactions. 
Benson  v.  Haljield,  5  Beav.  546. 

Account  of  Where  a  person  makes  a  shipment  of  goods  on  account  of  another, 

transactions  be-         ,      ,  ,  .  ,  ,  ,      r  i      . 

jween  two  per-  and  advances  money  to  him  upon  the  goods,  and  afterwards  the  same 
with  an'account  P^fson  and  his  partner  make  other  shipments  of  goods  on  account  of 
oi  tr»nsactions  such  other  party  and  his  partner,  and  advance  money  to  them  upon 
and  their  respec-  those  goods ;  and  the  proceeds  of  all  the  shipments  are  remitted  to 
another  firm ;  and  the  surviving  partners  of  that  firm  file  a  bill  of  in- 
terpleader against  the  assignees  of  the  person  who  made  the  first  ship- 


S.  II.  p.  I.]  DEMURRERS.  213 

to  prevent  the  splitting  of  causes,  and  consequent 


ment,  and  his  partner,  and  the  assi^mees  of  the  person  on  whose  ac- 
count the  first  shipment  was  made  and  his  partner,  and  pay  the  balance 
of  all  the  remiltancf  s  into  court,  as  one  balance ;  and  the  assiijjnees  of 
the  person  who  made  the  first  shipment  and  his  partner  file  a  bill 
against  the  surviving  partners  of  the  firm  to  whom  the  remittances 
were  made,  and  against  the  assignees  of  the  person  on  whose  account 
the  first  shipment  was  made  and  his  partner,  for  an  account  of  what  is 
due  to  the  person  by  whom  the  first  shipment  is  made,  and  also  of  what 
is  diio  to  him  and  his  partner,  on  account  of  their  advances  ;  the  suit 
is  multifarious  ;  because  the  first  transaction  between  two  persons, 
when  alone,  ought  not  to  be  mixed  up  with  the  transactions  between 
the  same  persons,  after  each  had  entered  into  partnership  with  another 
person.     Miller  v.  Crawford,  9  Law  J.  (O.  S.)  Ch.  R.  193,  L.  C. 

Cases  where  a  bill  is  not  multifarious. — It  does  not  follow,  as  a  neces-  Muitifariousnes* 

,        .  .         ,  .    ,        1  . 1 1  •  I  ■  /•     ■  as  to  one  defen- 

sary  consequence,  that  in  every  case  in  which  a  bill  is  multifarious  as  dant. 
to  one  defendant,  it  is  multifarious  as  to  the  rest.     Alt.  Gen.  v.  Cradock, 
8  Sim.  4.7. 

Where  a  case  is  an  entire  case  as  against  one  defendant,  the  court  Where  one  de- 

1         1  •        •  1  1    <•       1  •  fendant  is    only 

Will  not  attach  weight  to  the  objection  that  another  defendant  is  con-  connected  with 
nected  only  with  some  portion  of  the  whole  case:  for,  in  order  to  obvi-  J'aTe°a8^°a"a?n^ 
ate  this  objection,  it  would  be  necessary  to  split  an  entire  case.     And  ^no^^^^'"  defend- 
hence  where  a  bond  is  improperly  given  to  a  person  by  a  corporation, 
and  a  rate  is  imposed  to  provide  a  fund  to  meet  the  demand  upon  the 
bond,  an  information  seeking  protection  against  both  the  bond  and  the 
rate  is  not  multifarious:  for  as  the  illegality  of  the  bond  creates  an 
illegality  in  the  rate,  there  is  an  entire  case  as  against  the  corporation  ; 
and  though  the  obligee  has  nothing  to  do  with  the  rate,  but  only  with 
the  bond,  yet  the  information  is  not  multifarious  as  to  him.     Alt.  Gen. 
V.  Parr,  8  CI.  &l  Fin.  409. 
Several  charitable  trusts,  especially  if  the  property  is  small,  may  be  Comprising  »er- 

.  .       "^  -^  1  'J  eral  charitable 

comprised  in  one  inlormation,  where  one  and  the  same  party  is  pro-  trusts  in  oneia- 
ceeded  against  (such  as  a  city  company,)  and  where  the  several  trusts,  °"^^  '°°' 
though  created  by  different  persons,  and  at  different  times,  have  all  a 
common  suliject-matter  (such  as  monies  given  in  trust  to  be  lent,)  and 
where  the  persons  beneficially  interested  in  the  trusts  belong  to  the 
same  body,  (as  for  instance,  to  the  company  proceeded  against),  al- 
though very  different  descriptions  of  persons  among  that  body  are 
respectively  the  objects  of  the  respective  charities.  Alt.  Gen.  v.  .Uer- 
chant  Tailors^  Company,  1  M.  &  K.  189. 

Where  an  information  is  filed  against  the  trustees  of  certain  chari-  Seeking  tho  gen 

,  .  ,        .  .  crnl  ndiuinistra- 

ties,  antl  against  a  person  who,  in  concert  with  one  of  the  tnif^tees,  tion  ot  b  charity 
has  eflfected  an  exchange  of  property  in  which  they  were  jointly  inter-  ^^"respe^t'^of** 


213  DEMURRERS.  [ChAP.  II. 

multiplicity  of  suits,  will  allow  a  demurrer  upon 
this  ground  (^). 

(g)    1    Vern.  29;    Edgworth    v.     See   above,  pp.  169,  170.     [See   the 
Swift,  4  Bro.  P.  C.  654,  Toml.   Ed.     form  of  such  a  demurrer,  Willis  466. 

fraud  88  to  a   •  psted  for  a  portion  of  the  charity  estate,  and  such  information  alleges 
partbyonetruB.  ^]^^^  suc\i  exclianofe  is  fraudulent,  and  that  the  charity  estate  has  been 

tee  and  a   third  °  •' 

person.  improperly  managed  by  the  trustees,  and  prays  a  general  account,  and  a 

scheme,  and  that  the  exchange  may  be  set  aside  ;  a  demurrer  for  mul- 
tifariousness put  in  by  the  party  who  had  colluded  with  the  trustee  in 
the  exchange  will  be  overruled.     Alt.  Gen.  v.  Cradock,  3  My.  &.  C.  85. 

Account  of  both       Where  executors  have  possessed  themselves  of  the  rents  and  profits 

real  and  perBon-  of  real  estate  and  personal  estate  devised  and  bequeathed  to  diiferent 
al  estate- 
parties,  and  have  blended  both  together,  so  that  they  cannot  be  dis- 
tinguished, a  bill  filed  against  the  executors  and  the  per-ons  interested 
in  the  personal  estate  and  the  rents  and  profits  of  the  real  estate,  for 
an  account  of  both,  is  not  demurrable  for  multifariousness  or  misjoin- 
der.    Sanders  v.  Kelsey,  10  Jur.  833. 
Administration       The  administration  of  the  real  and  personal  estates  of  two  deceased 
partaers^in  o^e  partners,  towards  the  payment  of  their  joint  and  separate  debts,  may 
*"*'•  be  comprised  in  one  suit;  for  the  rule  is,  that  the  joint  estate  must 

first  be  applied  in  payment  of  the  joint  debts,  and  then  the  surplus  of 
the  separate  estate  of  each  partner  which  may  remain  after  payment 
of  the  separate  debts  of  that  partner  is  contributable  to  supply  the 
deficiency  of  the  joint  estate  to  pay  the  joint  debts.     And  those  who 
are  interested  in  the  surplus  of  the  separate  estate  of  one  partner, 
ought  to  be  present  to  a  suit  instituted  for  the  purpose  of  ascertaining 
what  is  the  surplus  of  the  separate  estate  of  another  partner.     Brown 
V.  Douglas,  11  Sim.  283;  Brown  v.  Weaiherby,  12  Sim.  6. 
Account  of  the        Where  an  action   is  brought  by  an  administrator  of  an  intestate 
de^e^ased*^  per"     against  the  executors  of  the  widow  of  the  intestate,  who  had  possessed 
•<">8.  assets  without  having  taken  out  administration,  for  monies  alleged  to 

be  due  to  the  intestate's  estate  ;    and  the  executors  of  the  widow  and 
the  children  of  the  intestate  file  a  bill  against  his  administrator,  for  an 
account  both  of  the  estate  of  the  intestate  and  of  the  estate  of  the 
widow, and  of  what  is  due  from  the  firmer  estate  to  the  latter,  and  for 
an  injunction  to  restrain  the  action,  the  bi.'l  is  not  multifarious;  for  in 
such  case  the  court  cannot  administer  relief  without  taking  the  ac- 
counts of  both  estates.     Leiois  v.  Edmund,  6  Sim.  251. 
Bill  by  different       Where  a  policy  of  insurance  is  underwritten  by  Lloyd's  under- 
wrUers°^in°^e"    writers,  and  another  policy  is  eflTected  by  the  same  party  with  the  cor- 
■pect  of  distinct  poration  of  the  London  Assurance,  these  bodies  of  underwriters  may 

policies.  ' 


S.  II.  p.  I.]  DEMURRERS.  214 

A  discovery  being  compelled  upon  a  bill  praying  murror  t" "ho"' 

■''=>'■                        *                               *         ^  relief  extends  to 
the  discovery. 

join  in  one  bill  against  the  assured.     Mills  v.   Campbell,  2  Y.  &  C. 
Eq.  Ex.  391. 

Where  a  bill  i.s  filed  by  the  drawer  and  acceptor  of  four  bi'ls  of  ex-  Suit  in  respect 
chancre,  against  a  pi^rson  to  whom  they  had  b^en  delivered  for  the  exchange, 
purpose  of  being  discounted,  and  against  his  indorsee^,  and  against 
subseq'ient  indorsees  who  are  the  holders  of  the  bills,  praying'  for  a 
delivery  up  of  the  bills  on  the  ground  of  a  fraud  to  which  all  the 
defend  ints  were  privy,  such  a  bill  is  not  multifarious.  Lord  Foley  v. 
Carlon,  1  Younge,  373. 

If  a  bill  is  filed  by  two  executors  for  an  account  of  assets  received  Bill  for  a  set-off, 

r  a>     c  '^"'^   '"  rcatram 

by  an  agent,  and  for  the  performance  of  an  agreement  for  a  set-on  ot  actions  on  pro- 
such  assets  against  monies  lent  by  him  to  them  individually  on  their  [^nxecutora!*^ 
respective  separate  accounts,  and  for  an  injunction  to  restrain  an 
action  brought  after  riotice  of  such  agreement,  by  indorsees  of  pro- 
missory notes  given  by  them  for  the  monies  so  lent ;  the  bill  is  not 
mu'tifarious,  nor  is  there  a  misjoinder  of  plaintiffs.  Davis  v.  Cripps, 
2  Y.  &  C.  Ch.  Ca.  430. 

Where  the  executors  of  a  testator  refuse  to  file  a  bill  to  have  a  tes-     Bill  to  have  aa 
tator's  estate  recouped  out  of  a  fund  in  court,  in  respect  of  a  debt  paid  ^^'^  mort-age 
out  of  that  estate,  which  oun^ht  to  have  been  paid  out  of  such  fund,  and  a"''  judgment 
there  are  no  assets  of  the  testator  remaming  tor  payment  ot  ajudgment  sum  recouped, 
creditor  and  of  a  morttragee,  Ahose  mortgage  debt  has  priority  over  th? 
judgment  debt ;  the  judgment  creditor  may,  without  any  objection  on 
the  ground  of  multifariousness,  file  a  bill  to  have  the  testator's  estate 
recouped,  and  the    rnortgago  and  judgment  debts  paid  out  of  the  sum 
as  to  which  the  estate  of  the  testator  is  sought  to  be  so  recouped  ;  and 
for  that  purpose  the  mortgagee  and  the  party  interested  in  the  fund 
above  mentioned,  as  well  as  the  executors,  are  proper  parties.     Lan- 
castor  V.  Eoors,A  Beav.  158. 

A  bill   to  restrain  commissioners  under  an  act  of  parliament  from     Rill  to  reatrai* 

,    ,      .    .                  ,                      r     1                      1          r                 1  differpnt  acts  of 
paving  one  part  and  draming  anot'ier  part  ot  ttie  same  plot  ot  groiin  1,  the  same  per- 
is not  multifarious.     Birley  v.   The  Conslablet,  <^c.  of  CharUon-upon -  *"°*' 
Med/ock,  3  Beav.  499. 

Where  by  a  deed  executed  br^fore  marriage,  a  husband  vests  a  fund  Bi"  >"  ""fispoct »' 

-'  "  property  com- 

in  two  trustees,  upon  trust  for  his  wife  for  life,  and,  after  her  decease,  prised  in  two 
for  the  benefit  of  the  chi'dren  of  the  marriage,  with  a  proviso  that  the 
persons  to  be  appointed  guardians  by  his  will,  with  the  trustees,  shall, 
after  the  decease  of  his  wife,  have  authority  to  apply  the  interest  and 
part  of  the  capital  for  the  maintenance  and  advancement  of  the  chil- 
dren; and  by  another  deed,  after  marriige,  he  vests  another  fund  in 
two  other  trustees,  upon  similar  trusts,  with  a  similar  proviso  ;  and  by 
his  will,  after  some  specific  bequests  to  his  wife,  he  bequeaths  his  pro- 


215  DEMURRERS.  [ChAP.  IL 

relief,  for  the  purpose  of  enabling  the  plaintiff  to 

, ! f    ■      

perty  to  tliree  of  the  trustees  of  the  dt?ed3,  upon  cortdin  trusts  for  the 
benefit  of  his  cljildron,  and  appoints  them  executors  and  guyrdians  of 
his  infant  children  ;  and  the  wife  and  ciiildren  file  a  bill  ag^ainst  the 
four  trustees  for  a  performance  of  the  trusts  of  the  deeds,  and  for  an 
account  of  the  personal  estate  and  debts,  and  an  administration  of  the 
property  ;  a  demurrer  by  the  three  trustees  appointed  guardians,  put 
in  on  the  ground  of  multifiriousness,  will  be  overruled  ;  for  there  is  a 
common  interest  in  all  the  plaintiffs  under  all  the  instruments  ;  and  all 
the  defendants  are  accounting  parties,  though  they  are  not  all  parlies 
to  all  the  instruments;  and  the  three  demurring  defendants  have  all 
an  interest,  nut  only  ander  the  will,  but  also  under  the  deeds,  by  force 
of  the  provisos,  therein  contained.  Campbell  v.  Mackay,  1  My.  &  C. 
602. 
Seeking  relief      Where  third  parties  have  been  implicated  in  what  they  know  to  be 

against  fraud,  ....  ,.,       /-./-•    •  i  i  i 

and  also  a  gene-  a  misapplication  ol  the  lunds  01  a  joint-stock  company,  they  may  be 

tTon"  ™™'*''^*'    made  defendants  to  a  bill  by  soir.e  of  the  shareholders  of  the  company, 

although  the  bill,  besides  seeking  relief  against  such  third  parties 

prays  also  for  the  general  administration  of  the  assets  of  the  company. 

Lund  V.  Blanshard,  4  Hare,  9.     In  the  case  in  which  this  point  arose, 

the  company  was  a  banking  company,  and  the  third  party  was  another 

banking  company. 

Payment  of  a      If  a  cestui  que  trust  of  a  sum  of  money  covenanted  to  be  settled 

peachmentof  a  seeks  payment  thereof  out  of  the  assets  of  the  covenantor,  and  for  a 

another'^credi"^  general  administration  of  his  personal  estate  for  that  purpose,  if  assets 

toT.  be  not  admitted,  and  also  seeks  to  impeach  a  prior  security  claimed 

over  the  whole  of  the  covenantor's  property  by  one  of  the  trustees  of 

the  settlement ;   a  demurrer  by  him  for  multifariousness  in  the  usual 

form  is  bad,  because  all  the  matters  may  come  into  consideration  ip  the 

course  of  taking  the  account,  and  therefore  are  not  "distinct,"  and  the 

defendant  trustee  is  "  interested"  in  the  account  as  trustee.     Addison 

V.  Walker,  4  Y.  &  C.  Eq.  Ex.  442. 

Distinct  reme-       ^  \)[[\  jg  jjpt  multifarious  because  it  seeks  to  enforce  one  remedy 

dies  against  dif-  -' 

ferent  defend-     against  one  defendant,  and  another  remedy,  in  addition  to  that  remedy, 
against  another  defendant.     Manners  v.  Rowley,  10  Sim.  470. 

Right  mode  of  taking  the  objection  of  multifariousness. — In  a  case 
where  defendant  demurred  to  a  bill  for  multifariousness,  and  it  was 
then  amended  so  as  to  preclude  a  demurrer  on  that  ground,  but  he  in- 
sisted on  the  same  objection  in  his  answer  to  the  amended  bill,  Sir  J. 
Wigram,  V.  C.  said,  "  It  would  certainly  be  most  unjust  if  a  plainliflT 
could  compel  a  defendant  to  continue  a  party  to  a  multifarious  record, 
merely  by  inserting  false  alleg  itions  in  the  bill.  A  plea  that  a  bill  is 
multifarious  is  a  defence  I  have  never  seen,  though  I  know  such  a  plea 


ants. 


S.  II.  p.  I.]  DEMURRERS.  ^     216 

obtain  that  relief,  the  discovery  is  in  general  inciden- 
tal to  the  relief  (/i),  and  a  demurrer  to  the  reliefcon-  217 
sequently  extends  to  the  discovery  likewise  (i)  (1).  218 

(h)  1  Sim.  &  Stu.  93.  the  plaintiff  is  entitled,  in  wliich  case 

(t)  See   Baker  V.  Mellish  10  Vee.  a  general  demurrer  would  perhaps  be 

544  ;  3  Meriv.  502.     It  may  happen,  overruled.     See    Brandon  v.  Smids, 

however,  that  the  relief  sought  may  2  Ves.  Jun.  514;  Brandon  v.  Johnson, 

be  consequential  to  discovery  to  which  ib.  517. 


has,  whether  successfully  or  not,  been  attempted.  ...  In  what  form 
this  objection  may  be  successfully  taken  or  resisIeJ,  according  to  the 
Btrict  mode  of  pleading,  I  need  not  now  inquire."  But  the  learned 
judge  added,  "The  objection  of  multifariousness  is  one  which  should 
be  taken  in  limine.  .  .  .  The  defendant  may  be  subjected  to  the  ex- 
pense of  taking  copies  of  papers  relating  to  matters  with  which  he 
has  no  conci  rn,  and  be  kept  before  the  court  on  the  discussion  of 
points  in  which  he  is  net  interested.  If  the  defendant  does  not  take 
the  objection  in  limine,  the  court,  considering  the  mischief  as  already 
incurred,  does  not,  except  in  a  special  case,  allow  it  to  prevail  at  the 
hearing.  All  that  the  court,  in  this  case,  can  do,  is  to  protect  the  defen- 
dant from  the  costs  incurred,  if  it  should  hereafter  appear  lie  has  been 
improperly  subjected  to  costs."     Benson  v.  Hadfuld,  4  Hare,  39,  40. 

(1)  A  demurrer  to  the  specific  relief  prayed  will  not  extend  to  the      whero  a  do- 
discovery  sought,  where  the  bill  states  a  clear  case  for  other  relief,  dop«  not  extend 
which  can  be  given  under  the  prayer  for  general  relief,  and  to  which  tod'^covery. 
the  discovery  sought  may  be  ancillary.     Deare  v.  Attorney  General,  1 
Y.  &.  C.  Eq.  E.V.  197. 

If  a  bill  solely  maintainable  for  discovery,  prays  relief,  it  would  in 
England,  but  not  in  America,  be  open  to  demurrer  to  the  whole  bill. 
The  rule  in  England  was  formerly,  that  if  a  bill  fr  discovery  and  relief 
was  good  for  discovery  only,  a  general  demurrer  to  the  whole  was  bad^ 
for  though  the  ])arty  was  not  entitled  to  relief,  he  was  not  to  be  preju- 
diced for  asking  too  much.  Story  Eq.  PI.  {312,  and  note  2,  citing 
Mitf.  183-4  and  other  authorities.  The  proper  course  in  New-York, 
ie  held  to  be  to  demur  to  relief  and  answer  to  discovery.  Brownell  v. 
Curtis,  10  Paige  210  ;  Higginhntliam  v.  Burnet,  5  Johns  C.  R.  184; 
so  in  Supremo  Ci  urt  U.  S.,  Livingston  v.  Story,  9  Peters  R.  632,  658  ; 
Whitbeck  v.  Edgar,  2  Barb.  Cli.  I{.  106. 

Defendant  may  answer  and  make  di.-covery  sought  by  a  bill  for  dis- 
covery and  relief,  and  demur  as  to  the  relief  only.  In  cases  where 
complainant  is  entitled  to  the  relief,  but  not  to  the  discovery  <if  tlie  facts 
upon  which  the  claim  to  relief  depend?,  because  the  discovery  might 
criminate  defendant  to  subject  him  to  a  forfeiture,  or  would  be  a  breach 


218  DEMURRERS.  [ChAP.  II. 

But  as  the  court  entertains  a  jurisdiction  in  certain 
cases  for  the  mere  purpose  of  compelling  a  disco- 
very, without  administering  any  relief,  it  was  for- 
merly conceived  that  though  a  plaintiff  prayed  by 
his  bill  relief  to  which  he  was  not  entitled,  he  might 
[184]  yet  show  a  title  to  a  discovery;  and  therefore,  though 
a  demurrer  might  hold  to  the  relief,  the  defendant 
might  notwithstanding  be  compellable  to  answer  to 
the  discovery,  the  bill  being  then  considered  as  in 
effect  a  bill  for  a  discovery  merely  {k).  This,  how- 
ever, has  since  been  determined  otherwise  (I)  ;  and 
where  a  plaintiff  entitled  to  a  discovery  added  to 
his  bill  a  prayer  for  relief  (m),  a  demurrer  has  been 

(k)  See  Fry  v.  Penn,  2  Bro.  C.  C.  against  the  interference  of  the  court, 

280  (1).  it  must   appear  from  the  manner  in 

{I)  See  Price  v.  James,  2  Bro.  C.  which   the    plaintiff  states  his  case 

C.  319.  that  he  seeks  the  discovery  as  inci- 

(m)  It  is  presumed,  that  in  order  dental  to  the  relief.     See  cases  in  the 

to  the  defendant  being  t'lus  able   by  next  note, 
demurrer  wholly  to   protect  himself 

of  confidence  which  some  principle  of  public  policy  wl!l  not  permit, 
defendant  may  answer  as  to  the  relief  and  demur  as  to  the  discovery. 
But  where  the  same  principle  upon  which  the  demurrer  to  the  discovery 
of  the  truth  of  the  allegations  contained  in  the  bill  is  attempted  to  be 
sustained;  is  equally  applicable  as  a  defence  to  the  relief  souglit  by 
the  bill,  the  defendant  cannot  demur  to  the  discovery  only  and  answer 
ae  to  the  relief.     Brownell  v.  Curtis  et.  al,  10  Paige  R.  210. 

Where  the  bill  seeks  relief  which  the  court  has  no  power  to  grant, 
as  for  redemption  of  land  sold  for  taxes,  and  also  a  discovery  as  to  the 
facts  connected  with  the  sale,  and  as  to  an  evasion  of  a  tender,  so  as 
to  prevent  redemption  within  two  years,  a  demurrer  to  the  whole  may 
not  be  too  broad,  there  being  no  itverment  that  any  suit  at  law  was 
pending  or  about  to  be  brought,  in  which  a  discovery  may  be  material, 
the  demurrer  is  proper  for  that  cause.  The  bill  was  dismissed  without 
prejudice  to  an  action  at  law.  Mitchell  et  al.  v.  Green  et  al,  10  Met- 
calf  R.  Mass.  101,  108. 

(1)  [Also  Higginboiham  v.  Burnet,  6  J.  C.  R.  184;  Laight  v.  Mor* 
gan,  1  J.  C,  429;  S.  C.  2  C.  C.  E.  344.] 


S.  II.  p.  I.]  DEMURRERS.  219 

allowed  (n).     And  where  a  defendant  had  demur-  duw""^  a°nd' 
red  to  the  discovery  sought  by  a  bill,/^>'r  want  ^^°°»'°^«"^e*- 
title  in  the  jylaintiff  to  require  the  discovery,  but 
had  omitted  to  demur  to  rehef  prayed  (I),  to  which 
that  discovery  was  merely  incidental,  it  was  con- 
ceived the  demurrer  must,  in  point  of  form,  be  over- 
ruled ;  for  the  demurrer,  applying  to  the  discovery 
only,  admitted  the  title  to  relief,  and   consequently 
admitted  the  title  to  the  discovery,  which  was  only 
incidental  to  the  relief  (^).     But  though  a  plaintiff      [185] 
may  be  entitled  to  the  relief  he  prays,  there  may 
yet  be  reasons  to  induce  a  court  of  equity  to  forbear 
compelling  a  discovery  {p). 

It  remains  therefore  to  consider  the  objections  to  Grounds  of  de. 

"'  murrer  to  oia- 

a  bill  which  are  causes  of  demurrer  to  discovery  covery. 

(n)  Collisv.  Swayne,4  Bro.  C.  C.  tice,  and  possibly  a  greater  incouve- 

480  ;  Laker  v.  Rolle,  3  Ves.  4  ;  Rijves  nience  (2). 

V.  Ryvps,  3  Ves.  343;    6  Ves.  C3  ;  6         (o)  Morgan  v.  Harris,  in  Ch.  31 

Ves.  (J8G  ;  8  Ves.  3  ;   Gordon  v.  Simp-  Oct.  178G,  reported  2  Bro.  C.  C.  121 ; 

kinson,   11   Ves.  509;  17    Ves.  216;  Waring  v.  Mnckrcth,  Forres^i,  ]2D. 

1  Ves.  &  Bea.  539  ;  2  Ves.  &  Bea.  (p)  A  plaintiff  may  be  entitled  to 
328;  Jones  v.  Jones,  3  Meriv.  161  ;  relief  in  equity,  independently  of  the 
3  Meriv.  502.  This  may  probably  discovery,  1  Swanst.  294.  And  there 
have  the  effect  of  compelling  a  plain-  may  be  instances  in  which  a  defend- 
tifF  in  a  doubtful  case  to  frame  his  ant,  although  he  should  ihink  proper 
bill  for  a  discovery  only  in  the  first  to  give  the  discovery,  may  yet  de- 
instance  ;  and,  having  obtained  it,  by  mur  to  the  relief.  2  Atk.  157; 
amending  his  bill  to  try  the  question  Ilodgkin  v.  Longden,  8  Ves.  2; 
whether  he  is  also  entitled  to  relief;  Todd  v.  Gee,  17  Ves.  273. 

which  was  formerly  a  frequent  prac- 

(1)  The  36th  order  of  August,  1841,  does  not  enable  a  defendant 
to  demur  to  discovery  without  demurring  to  the  relief.     Dell  v.  Hale, 

2  Y.  &  C.  Ch.  C.  1. 

(2)  {S.nAse^  Bullerworlh  \.  Bailey,  \5  We?..  361;  Crowv.  Tyrell, 
2  Mad.  C.  R.  409;  Lousada  v.  Templer,  2  Russ.  661  ;  M'DongiU  v. 
Miln,  2  Paige's  C.  R.  326;  al-o  page  201,  post;  Allen  v.  OrpelanJ, 
7  Price's  R.  622  ;  Melish  v.  Richardson,  1 1  Price,  630 ;  Jackson  v. 
Strong,  13  Price,  494,] 


220  DEMURRERS.  [CuAP.  II. 

only.  These  are,  I.  That  the  case  made  by  the 
bill  is  not  such  in  which  a  court  of  equity  assumes 
a  jurisdiction  to  compel  a  discovery  :  II.  That  the 
plaintiff  has  no  interest  in  the  subject,  or  no  inte- 
rest which  entitles  him  to  call  on  the  defendant  for 
a  discovery  :  III.  That  the  defendant  has  no  inter- 
est in  the  subject  to  entitle  the  plaintiff  to  institute 
a  suit  against  him  even  for  the  purpose  of  disco- 
very ;  IV.  Although  both  plaintiff  and  defendant 
may  have  an  interest  in  the  subject,  yet  that  there 
is  not  that  privity  of  title  between  them  which  gives 
the  plaintiff  a  right  to  the  discovery  required  by  his 
bill  :  V.  That  the  discovery  if  obtained  cannot  be 
material :  and,  VI.  That  the  situation  of  the  de- 
fendant renders  it  improper  for  a  court  of  equity 
to  compel  a  discovery  (1). 
J.wantofjuriB.  1.  Where  a  bill  prays  relief,  the  discovery,  if 
material  to  the  relief,  being  incidental  to  it,  a  plain- 
tiff showing  a  title  to  relief  also  shows  a  case  in 
which  a  court  of  equity  will  compel  a  discovery, 
unless  some  circumstance  in  the  situation  of  the 
[186]  defendant  renders  it  improper.  But  where  the  bill 
is  a  bill  of  discovery  merely,  it  is  necessary  for  the 
plaintiff  to  show  by  his  bill  a  case  in  which  a  court 
of  equity  will  assume  a  jurisdiction  for  the  mere 

221  purpose  of  compelling  a  discovery.     This  jurisdic- 

Demurrer  on  (1)  To  a  bill  by  legatees,  whose  legacies  are  charged  on  real  estate, 
the  dUcovery*  charging  that  the  testator  was  tenant  in  fee  simple,  and  not  tenant  in 
fendMt^stirt'^^'  ^^'''  °^  ^"^^  ^^^^  estate,  as  alleged  by  the  defendant,  or  that  only  a 
small  portion  thereof  was  entailed,  and  seek  ng  for  a  discovery  and  pro- 
duction of  the  deed  of  entail,  a  demurrer  on  the  ground  that  it  relates 
to  the  defendant's  title  will  be  allowed.  Wilson  v.  Forster,  1  Younge, 
281. 

On  the  subject  of  discovery,  the  reader  is  referred  to  the  learned 
works  of  Sir  James  VVigram  and  Mr.  Hare. 


S.  II.  p.  I.]  DEMURRERS.  221 

tioij  is  exercised  to  assist  the  administration  of  jus- 
tice in  the  prosecution  or  defence  of  some  other 
suit,  either  in  the  court  itself  or  in  some  other 
court  (q).  Where  the  object  of  a  bill  is  to  obtain  a 
discovery  to  aid  the  prosecution  or  defence  of  a  suit 
in  the  court  itself,  as  the  court  hr.s  already  jurisdic- 
tion of  the  subject,  to  state  the  suit  depending  is 
sufficient  to  give  the  court  jurisdiction  upon  the  bill 
of  discovery  (2).     But  if  a  bill  is  brought  to  aid,  by 

(q)   See  Moodaly  v.  Moreton,  Dick.  A  discovery  has  been  compelled  to 

652  ;  S.  C.  I  Bro.  C.  C.469  ;  Bishop  aid  the  juiisdictiou  of  a  foreifrii  court. 

of  London  v.  Fytche,  1  Bro.  C.  C.  96  ;  Crowe  and  othersv.  Del  Risand  Val- 

Caidule  v.    Watkins,  5   Madd.  18.  Zeg-o,  in  Chan.  11th  July,  1769  (1). 

(1)  [See  the  form  of  such  a  bill,  Willis,  316.  It  is  well  established, 
that  whether  the  action,  in  aid  of  which  a  discovery  is  sought,  be 
founded  on  contract  or  in  tort,  if  the  plaintiff  has  an  equitable  right,  a 
discovery  will  be  enforced.  Skinner  v.  Judson,  6  Day  N.  S.  528,  and 
cases  there  referred  to;  Northrop  v.  Hatch,  6  Conn.  R.  361.  After 
a  verdict  at  law,  the  party  conies  too  late  with  a  bill  for  discovery. 
Duncan  v.  Lyon,  351.] 

Jn  Bent  v.  Young,  9  Sim.  191,  19-',  Sir  L.  Sliadwell,  V.  C,  observed, 
that  the  demurrer  in  this  case  was  a  speaking  demurrer;  and  that  ^he 
Lord  Chancellor  may  very  probably  have  overruled  the  demurrer  on 
that  ground,  without  at  all  entering  info  the  consideration  of  the  ques- 
tion, whether  the  court  will  enforce  discovery  in  aid  of  proceedings  in 
a  foreign  court. 

The  authorities,  says  Story,  are  contradictory  as  to  a  bill  in  aid  of 
prosecution  or  defence  of  a  foreign  suit.  In  Bent  v.  Young,  9  Sim. 
R.  180,  the  V.  C.  held  it  would  not  be  in  aid  of  a  defence,  and  that  Crowe 
v.  Del  Ris,  cited  in  Mitford,  186,  n.  (q),  do  not  support  the  doctrine. 
But  in  Mitchell  v.  Smith,  1  Paige's  C.  R.  287,  it  was  held  that  sucii  bill 
would  lie.     Story's  Eq.  PI.  §  311. 

[A  foreign  judgment  cannot  bo  questioned  in  the  courts  in  this  county. 
Therefore,  a  bill  for  a  discovery  and  commission  to  examine  witnesses 
abmad,  in  aid  of  the  complainant's  defence  to  an  action  brought  in  this 
country  on  a  foreign  judgment,  is  demurrable.  Martin  v.  Nicols,  3 
Sim.  458.] 

(2)  [It  ought  to  state  enough  to  enable  the  court  to  see  that  the 
ends  of  justice  require  its  interposition  ;  and  tiie  facts  sought  to  be  dis- 


221  DEMURRERS.  [ClIAP.  11. 

a  discovery,  the  prosecution  or  defence  of  any  pro- 
ceeding not  merely  civil  in  any  other  court,  as  an 
indictment  or  information,  a  court  of  equity  will  not 
exercise  its  jurisdiction  to  compel  a  discovery,  and 
the  defendant  may  demur  (r).  And  in  the  case 
of  suits  merely  civil  in  a  court  of  ordinary  jurisdic- 
tion, if  that  court  can  itself  compel  the  discovery 
required,  a  court  of  equity  will  not  interfere  (s). 
Therefore,  where  a  bill  was  filed  for  a  discovery  of 
the  value  of  the  respective  real  and  personal  estates 

(r)  2  Ves.  398  ;  and  see  Thorpe  v.         (s)  1  Atk.  288  ;  1  Ves.  205  ;  Anon. 
Macauley,  5  Madd.  218  ;   Shackell     2  Ves.  451. 
V.  Macaulay,  2  Sim.  &  Stu.  73  (1). 


covered  should  be  so  far  stated  as  to  show  their  pertinency  and  rele- 
vancy. AVIntyrev.  Mancius,  3  J.  C,  R.  46;  S.  Con  appeal,  16  J.  R. 
592  ;  and  see  Askam  v,  Thompson,  4  Price,  330.  If  the  facts  depend 
on  the  testimony  of  witnesses,  and  the  court  of  law  can  compel  their  at- 
tendance, chancery  will  not  interefere.  Gelston  v.  HoyI,  1  J.  C.  R. 
643  ;  and  see  Seymour  v.  Seymour,  4  lb.  409.  A  bill  of  discovery  must 
be  for  matters  which  lie  only  within  the  defendant's  knowledge. 
Bullock  V.  Boyd,  2  Marsh.  323.  A  bill  of  discovery  will  be  sustained 
to  aid  the  prusecution  or  defence  of  a  civil  suit  in  a  foreign  tribunal, 
Mitchell  V.  Smith,  1  Paige's  C.  R.  287.  Vance  v,  Andrews,  2  Barb.  Ch. 
Rep.  370.  [And  see  pages  200,  201,  pos'.]  There  is  no  limitation,  in 
point  of  time,  within  which  a  bill  for  discovery  in  aid  of  an  action  at  law 
must  be  filed.     Munt  v.  Scott,  3  Price,  477. 

Chancellor  Walworth,  in  the  case  of  Diasv.  Merle,  A  Paige  C.R.  259, 
fecognises  another  species  of  discovery-bill  where  no  relief  is  prayed  : 
namely,  a  bill  of  discovery  in  aid  of  the  original  (chancery)  suit.  See 
an  extract,  from  his  opinion  at  page  62,  ante,  in  note.] 

(1)  [Patterson  v.  Patterson,  1  Hay  ward's  R.  167  ;  M^lntyrev.  Man- 
cius,  on  appeal,  16  J.  R.  276  ;  Skinner  v.  Judson,  8  Day,  628.  But  it 
is  said,  that  if  the  forfeiture  or  penalty  is  waived  by  those  who  are  enti- 
tled to  it,  or  is  barred  by  the  stntute  of  limitations,  it  no  longer  shields 
.the  party  from  a  discovery.  Skinner  v.  Judson,  supra.  See  the  form  of 
a  demurrer  where  a  discovery  would  subject  the  defendant  to  pains  and 
penalties  and  forfeitures.  Willis,  477  ;  and  observe  note  (a)  there. 
Also  page  19i,  post.] 


S.  II.  p.  I.]  DEMURRERS.  222 

of  the  inhabitants  of  a  parish  in  which  a  church  rate 
had  been  assessed,  and  of  the  application  of  the  [187] 
money  collected,  a  demurrer  was  allowed  ;  because 
the  ecclesiastical  court,  to  which  the  ordinary  juris- 
diction belonged,  was  capable  of  compelling  the 
discovery  (t). 

II.  A  bill  must  show  an  interest  in  the  plaintiff  n.  wnntonn- 
in  the  subject  to  which  the  required  discovery  re-  i;|;;-"lif^"n"on* 
lates  (u),  and  such  an  interest  as  entitles  him  to  call  for a'^dSvTiV- 
on  the  defendant  for  the  discovery.  Therefore 
where  a  plaintiff  filed  a  bill  for  a  discovery  merely, 
to  support  an  action  which  he  alleged  by  his  bill  he 
intended  to  commence  in  a  court  of  common  law, 
although  by  this  allegation  he  brought  his  case  with- 
in the  jurisdiction  of  a  court  of  equity  to  compel  a 
discovery,  yet  the  court  being  of  opinion  that  the 
case  stated  by  the  bill  was  not  such  as  would  sup- 
port an  action,  a  demurrer  was  allowed  (x)  ;  for  un- 
less the  plaintiff  had  a  title  to  recover  in  an  action 
at  law,  supposing  his  case  to  be  true,  he  had  no  title 
to  the  assistance  of  a  court  of  equity  to  obtain  from 
the  confession  of  the  defendant  evidence  of  the  truth 
of  the  case  (y).  And  upon  a  bill  filed  by  a  credi- 
tor, alleging  that  he  had  obtained  judgment  against 
his  debtor,  and  that  the  defendant,  to  deprive  him  of 
thebenefit  of  his  judgment,  had  got  into  his  hands 
goods  of  the  debtor  under  pretence  of  a  debt  due  223 

(t)   Dunn  V.  Coalcs,  1  Atk.  288.  (x)   Dehbieg  and   Lord  Howe,  in 

(u)    Ramere    v.    Rawlins,     Rep.  Chan.    Hil.  1782 ;  cited  3  Bro.  C.  C. 

Temp.  Finch  36;  Newman  v.  Hold-  155;  Wallis  v    Duke  of  Portland, 

er,   ib.  44 ;     and   see  2  Ves.    247 ;  3   Ves.    494 ;    Lord   Kensingto'h  v. 

Northleigh  v.  Luscomhe,  Anil)l.  612;  Mansell,  13  Ves.  jun.  240. 

and     Wright  v.  Pluintree,  3  Madd.         (y)  See  The  Mayor  of  London  v. 

481.  Levy,  8  Ves.  398. 


223  DEMURRERS.  [ChAP.  II. 

[188]  to  himself,  and  praying  a  discovery  of  the  goods  ; 
the  defendant  demurred,  because  the  plaintiff  had 
not  alleged  that  he  had  sued  out  execution,  and  be- 
cause until  he  had  so  done  the  goods  were  not 
bound  by  the  judgment,  and  consequently  the  plain- 
tiff had  no  title  to  the  discovery  ;  and  the  demurrer 
was  allowed  (?/). 
m.  Want  of  in.      HI-  Unlcss  a  defendant  has  some  interest  in  the 

lerest  in  the  de«         i   •  i  i  •'        i  •.  J 

fendant.  suoject,  hc  may  be  examined  as  a  witness,  and 

therefore  cannot  in  general  be  compelled  to  answer 
a  bill  for  a  discovery  (z)  (1)  ;  for  such  a  bill  can  only 
be  to  gain  evidence,  and  the  answer  of  the  de- 
fendant cannot  be  read  against  any  other  person, 
not  even  against  another  defendant  to  the  same 
bill  {a)  (2).  But  if  the  bill  states  that  the  defend- 
ant has  or  claims  an  interest,  a  demurrer,  which 
admits  the  bill  to  be  true,  of  course  will  not  hold  (V), 
though  the  defendant  has  no  interest ;  and  he  can 
then  only  avoid  answering  the  bill  by  plea  or  dis- 
claimer.    There  seems  to  be  an  exception  to  the 

(y)  Angell  v.  Draper,  1  Vern.  399.  426  ;  1  Yes.  Jun.  294,  uote  (e).     Fen- 

But  see  Taylor  v.  Hill,  1  Eq.  Ca.  ton  v.  Hughes,  7  Ves.  287  ;  14  Ves. 

Ab.  132.  252 ;  How  v.  Best,  5  Madd.  19. 

(«)  Steward  v.   E.    I.    Camp.  2  (a)  2  Vern.  380 ;  3  P.  Wms.  311, 

Vern.  380 ;    Dineley  v.  Dineley,  2  and  ib.  note  (A). 

Atk.  394 ;  Plummer  v.  May,  1  Ves.  (6)  1  Ves.  426, 

(1)  Jones  V.  Mauni,  3  Y.  &  C.  Eq.  Ex.  347.  Payne  v.  Cowan  el  al. 
1  Smedes  &  Marsh.  C.  R.  Miss.  27. 

[See  the  form  of  such  a  demurrer,  Willis,  470.] 
[Hampton  v.  Hampton,  Yen).  «St  Scriv.  614;  Crane  v.  Deming,! 
Day's  R.  387.] 

(2)  [And  if  a  bill  be  filed  against  two,  and  one  has  no  interest,  a 
dersurrer  will  hold.  Thus,  a  bill  was  filed  against  husband  and  wife 
showing  an  interest  in  the  husband,  but  none  in  the  wife.  Both  joined 
in  a  general  demurrer;  and  it  was  sustained  as  to  her.  Crane  v. 
Deming,  supra.  See  a  demurrer  to  a  bill  where  the  defendant  cou!d 
be  examined  as  a  witness,  Willis,  472]  Wooden  v.  Morris,  2  Green's 
C.  R.  65. 


S.  II.  p.  I.]  DEMURRERS.  223 

rule  in  the  case  of  a  corporation ;  for  as  a  corpora- 
tion can  answer  no  otherwise  than  under  their  com- 
mon seal,  and  therefore,  though  they  answer  falsely, 
there  is  no  remedy  against  them  for  perjury,  it  has  224 

been  usual,  where  a  discovery  of  entries  in  the 
l)ooks  of  the  corporation,  or  of  any  act  done  by 
the  corporation,  has  been  necessary  to  make  their 
secretary  or  book-keeper  or  other  officer  a  party  (c) ;  [189] 
and  a  demurrer  because  the  bill  showed  no  claim 
of  interest  in  the  defendant  has  been  in  such  case 
overruled  {d).  So  where  bills  have  been  filed  to 
impeach  deeds  on  the  ground  of  fraud,  attornies 
who  have  prepared  the  deeds,  and  other  persons 
concerned  in  obtaining  them,  have  been  frequently 
made  defendants,  as  parties  to  the  fraud  com- 
plained of,  for  the  purpose  of  obtaining  a  full  dis- 
covery;  and  no  case  appears  in  the  books  of  a  de- 
murrer by  such  a  party  because  he  had  no  claim 
of  interest  in  the  matter  in  question  by  the  bill. 
Indeed  an  attorney  under  such  circumstances,  being 
brought  as  a  party  to  the  suit  to  a  hearing,  has 
been  ordered  to  pay  costs  (e)  ;  apparently  on  the 
same  ground  as  costs  were  awarded  againt  arbi- 
trators in  the  cases  of  their  misconduct  before 
noticed  (/). 

(c)  Anon.  1  Vern.  117  (1).  (e)  Bennet  v.  Vade,2  Atk.  324; 

{(1)   Wychv.  Meal, 3  P. Wm3.3m;  1   Sch.   &    Lefr.  227;    Fenwick  v. 

7  Ves.  Juii.  289  ;  14  Ves.  252,  et  seq.;  Reed,  1  Meriv.  11. 
Gibbons  V.  Waterloo   Bridge  Comp.         (/)  Vid.  sup.  p.  187. 
5  Pri.  Ex.  R.  491. 


(1)  [And  see  Vermilyea  v.  The  Fullon  Bank,  1  Paige's  C.  R.  37; 
President,  4-c.  nf  Fulton  Bank  v.  Sharon  Canal  Co.,  lb.  219;  2  Re- 
vised Statutes  of  N.  Y.  465,  \  52 ;  also  p.  103,  note,  ante.'] 

20 


224  DEMURRERS.  [ChAP.  II. 

lV^be°tween"  I^-  Although  both  plaintiff  and  defendant  may 
dlTfendi^t^  ""''  have  an  interest  in  the  subject  to  which  the  disco- 
very required  is  supposed  to  relate,  yet  there  may 
not  be  that  privity  of  title  between  them  which  can 
give  the  plaintiff  a  right  to  the  discovery.  Thus 
where  a  bill  was  filed  by  a  person  claiming  to  be 

225  lord  of  a  manor  against  another  person,  also  claim- 
ing to  be  lord  of  the  same  manor,  and  praying, 
amongst  other  things,  a  discovery  in  what  manner 
the  defendant  derived  title  to  the  manor,  the  de- 

[190]  fendant  demurred,  because  the  plaintiff  had  shown 
no  right  to  the  discovery,  and  the  demurrer  was 
allowed  (g). 

So  where  a  bill  was  filed  by  a  person  claiming 
under  a  grant  from  the  duchy  of  Lancaster,  to  be 
bailiff  of  a  liberty  within  the  duchy,  with  a  right 
to  all  waifs,  estrays,  and  other  casualties  within  the 
.liberty,  and  all  fees  and  perquisities  respecting  the 
same,  against  the  owner  of  an  inn  in  the  liberty,  and 
his  tenants,  alleging  that  the  inn-yard  had  been 
used  as  a  common  pound  within  the  liberty  for  all 
waifs  and  strays  and  casualties  :  and  that  the  tenant, 
under  demise  from  the  owner,  had  seized  and  taken 
all  waifs  and  strays  and  other  casualties  ;  and  re- 
ceived the  fees  and  perquisites  thereon ;  and  re- 
quired the  owner  to  discover  how  he  derived  title 
thereto,  and  what  leases  or  demises  he  had  made 
thereof;  ademurrertothediscovery  was  allowed  (^). 

(g-)    Adderley    and    Sparrow,  in  Adderlei/,  Hungerfordv.  Goreing,  2 

Chan.  Hil.  1779.  Vern.  38;  Stapleton  v.  Sherrard,  1 

(A)    Ritson  V.  Sir,  John  Danvers,  Verii.    212;    Sherbone    v.  Clerk,  1 

in   Duchy   C.  of  Lancaster,  28  Oct.  Vern.  273,  and  Welby  and  D.  of  Rut- 

1787,  by  the  Chancellor,  assisted  by  land,  2    Brown  P.  C.  39,  Toml.  Ed. 

Lord  Loughborough  and  Mr.  Justice  were  cited ;  and  Lord  Loughborough 

Wilson.     The  cases  of  Sparrow  v.  mentioned   a   case  of   Sir   William 


S.  II.  p.  I.]  DEMURRERS.  226 

In  general,  where  the  title  of  the  defendant  is  .not 
in  privity,  but  inconsistent  with  the  title  made  by 
the  plaintiff,  the  defendant  is  not  bound  to  discover     [191] 
the  evidence  of  the  title  under  which  he  claims  (i). 
And  therefore,  on  a  bill  filed  by  an  heir  ex  parte  *• 

materna  against  a  general  devisee  and  executor, 
who  had  completed  by  conveyance  to  himself  a  pur- 
chase of  a  real  estate  contracted  for  by  the  testator 
after  the  date  of  his  will,  alleging  that  there  was  no 
heir  ex  parte  paterna,  bat  that  the  devisee  set  up 
a  title  under  a  release  from  his  father  as  heir  ex 
parte  paterna  of  the  testator,  and  praying  a  con- 
veyance to  the  plaintiff,  and  seeking  a  discovery 
in  what  manner  the  father  claimed  to  be  heir  ex 
parte  paterna,  and  the  particulars  of  the  pedigree 
under  which  he  claimed,  a  demurrer  to  that  dis- 
covery was  allowed  {k). 

V.  As  the  object  of  the  court  in  compelling  a  dis-  t^  J^thSS- 
covery  is  either  to  enable  itself  or  some  other  court  '^"^^ 
to  decide  on  matters  in  dispute  between  the  parties, 
the  discovery  sought  must  be  material,  either  to  the 
relief  prayed  by  the  bill,  or  to  some  other  suit  ac- 
tually instituted,  or  capable  of  being  instituted  (1). 

Wake  and  Conyers  before  Lord  J.  and  Thomson,  B.  assisting. 
Northington.  See  also  Corporation  {i)  Stroud  v.  Deacon,  1  Ves.  37  ; 
of  Dartmouth  v.  Scale  in  Chan.  18  Buden  v.  Dore,  2  Ves.  445;  Samp- 
Doc.  1717,  rep.  1  Cox,  R.  416.  See  son  v.  Swetteiikam,  5  Madd.  16  ;  Ty- 
a.\80  Ritson  V.  Sir  John  Danvers,24  ler  v.  Draylon,  2  Sim.  &  Slu.  309, 
Nov.  1790,  on  demurrer  to  an  amend-  and  the  cases  therein  cited  ;  and  see 
ed  bill.  Baron  Thomson  assisting  the  Chamberlain  v.  Knapp,  1  Alk.  52. 
Chancellor ;  and  Ati.  Gen.  v.  Sir  (k)  Ivy  v.  Kekcwich,  in  Ch.  27th 
John  Danvera,  25  Jan.  1792;  Grose,  July,  1795,  rep.  2  Ves.  Juu.  679. 


(1)  A  bill  may  be  sustained  for  a  discovery  in  aid  of  an  action  at  Binofdiscoyerf 
law,  and  for  an  injunction  to  restrain  the  delendanta  at  law  in  the  IcKoS!'"'"'^  ** 
mean  time  "from  proceeding  to  apply  for  judgment  as  in  the  case  of 


227  DEMURRERS.  [ChAP.  TI. 

If  therefore  the  plaintiff  does  not  show  by  his  bill 
such  a  case  as  renders  the  discovery  which  he  seeks 
material  to  the  relief,  if  he  prays  relief  or  does  not 
show  a  title  to  sue  the  defendant  in  some  other 
•  court  (I),  or  that  he  is  actually  involved  in  litigation 

[192]  with  the  defendant,  or  liable  to  be  so,  and  does  not 
also  show  that  the  discovery  which  he  prays  is  ma- 
terial to  enable  him  to  support  or  defend  a  suit,  he 
shows  no  title  to  the  discovery,  and  consequently 
a  demurrer  will  hold  (7)1)  (1).  Therefore  where  a 
bill  filed  by  a  mortgagor  against  a  mortgagee  to  re- 
deem sought  a  discovery,  whether  the  mortgagee 
was  a  trustee,  a  demurrer  to  the  discovery  was  al- 

228  lowed.  For  as  there  was  no  trust  declared  upon 
the  mortgage,  it  was  not  material  to  the  relief  pray- 
ed whether  there  was  any  trust  reposed  in  the  de- 

(T)  Debbieg  and  Lord  Hoice,  in  Ch.  (m)  See  cases  cited  supra,  note  (l) ; 

Hil.   1782;  cited  3   Bro.  C.  C.  155  ;  and  see  1  Ves.  249  ;  1  Bro.  C.  C.  97  ; 

Wallis  V.  Duke  of  Portland,  3  Ves.  and    Askam    v.    Thompson,   4  Pri. 

494 ;   The  Mayor  of  London  v.  Levy,  Exch.  R.  330 ;  Cardale  v.  Watkins,  5 

8    Ves.    398 ;    Lord  Kensington  v.  Madd.  19. 
Mansell,  13  Ves.  Jun.  240. 


nonsuit,  or  from  taking  the  cause  to  trial  by  proviso,"  although  it  is 

not  clear  that  the  action  can  be  maintained,  but  yet  there  is  considera- 
ble ground  for  argument  in  support  of  the  action  in  a  court  of  law. 
Thomas  v.  Tyler,  3  Y.  &  C.  Eq.  Ex.  255. 
Bill  for  a  disco-      ^  colonial  or  foreign  judgment  cannot  be  questioned  in  the  courts  of 
very  and  com-  this  Country:  and  therefore  a  bill    for  a  discovery  and  a  commission, 

mission  m  aid  of  .     '       .  .         ■,      c      i         i    •      •m? 

a  defence  to  an  to  examine  Witnesses  abroad,  in  aid  oi   the  plaintiff  s  defence  to  an 
ef'Ti'^judgment!  action  brought  in  this  country  on  a  colonial  or  foreign  judgment,  is 
demurrable.     Martin  v.  Nichols,  3  Sim.  458. 
Bill  for  a  com-       n)  Where  a  bill  is  filed  for  a  commission  to  examine  witnesses, 

mission  to  exa-  .         •  i     r        i    r  i  •        ^      i-i     i    . 

mine  witnesses,  and  for  a  discovery  in  aid  of  a  deience  at  law  tor  ah  action  for  libel,  it 
very^tn  aid  of  °a  is  necessary  that  the  case  sought  to  be  made  out  in  equity  should  con- 
defence  to  an  ac-  stitute  a  defence  at  law. 

tion  lor  libel. 

Reference  to        It  is  sufficient,  however,  to  refer  to  the  pleas  at  law  by  the  words, 
'-"as  by  the  said  plea?,  reference  being  thereunto  had,  will  appear:" 
for  that  will  enable  the  court  to  call  for  the  pleadings  at  law.     Macau- 
lay  V.  Shackell,  1  Bligh,  96,  (N.  S.) 


S.  II.  p.  I.]  DEMURRERS.  228 

fendant  or  not  (n).  So  where  a  bill  was  filed  by  a 
lord  of  a  borough,  praying  amongst  other  things,  a 
discovery,  whether  a  person  applying  to  be  admit- 
ted tenant  was  a  trustee,  the  defendant  demurred 
(o),  it  being  wholly  immaterial  to  the  plaintiffs 
case  whether  the  defendant  was  a  trustee  or  not. 
And  where  a  bill  was  brought  for  a  real  estate,  and 
sought  discovery  of  proceedings  in  the  ecclesiasti- 
cal court'  upon  a  grant  of  administration,  the  de- 
fendant demurred  to  that  discovery,  the  proceedings 
in  the  ecclesiastical  court  beincr  immaterial  to  the 
plaintiff's  case  (p).  Again,  where  a  bill,  to  estab- 
lish an  agreement  for  a  separate  maintenance  for 
the  defendant's  wife  prayed  a  discovery  of  ill  treat- 
ment of  the  wife,  to  make  her  recede  from  the 
agreement,  the  defendant  demurred  to  the  dis- 
covery (q)  which  could  not  be  material  to  the  case  [19^] 
made  by  the  bill.  But  in  general,  if  it  can  be  sup- 
posed that  the  discovery  may  in  any  way  be  ma- 
terial to  the  plaintiff  in  the  support  or  defence  of 
any  suit,  the  defendant  will  be  compelled  to  make 
it  (r)  (1) .     Thus  where  a  bishop  filed  a  bill  ag  ainst  the 

(n)  Harvey  v.  Morris,  Rep.  Tern.  (q)  Hincks  v.  Nelthrope,  1  Vern. 

Finch,  214.  204. 

(0)  Lord  Montague  v.  Dudman,  (r)  1  Ves.  205  ;  and  see  Richards 
2  Ves.  396.  v.  Jackson,  18  Ves.  472 ;    1   Madd. 

(/))  2  Atk.  388.  (2)  R.  192 ;  Att.  Gen,  v.  Berkeley,  2  Jac. 

&,  W.  291. 

(1)  The  Court  of  Chancery  compels  a  discovery  in  aid  of  the  prose- 
cution of  a  suit  at  law,  upon  the  same  principle,  and  to  the  same  ex- 
tent that  it  compels  a  discovery  in  aid  of  the  defence  of  a  suit.  Lane 
V.  Stebbins,  9  Paige,  Cli.  R.  62;}.  As  a  general  rule,  the  complainant, 
who  is  sued  at  law  and  has  a  legal  defence  to  such  suit,  and  who  only 
needs  the  aid  of  the  Court  of  Chancery  to  obtain  a  discovory  to  enable 
him  to  establish  such  defence,  must  come  into  the  Court  of  Cliancery, 
for  his  discovery  before  the  trial  at  law.  Pa  terson  v.  Bangs,  9  Paige, 
Ch.  R.  627. 

(2)  [And  see  the  form  of  such  a  demurrer,  Willis,  476.] 


tie 


229  DEMURRERS.  [ChAP.  II. 

patron  of  a  living  and  a  clerk  presented  by  him,  to 

discover  whether  the  clerk  had  given  a  bond  of  re- 

229  signation,  and  the  patron   demurred,  because  the 

discovery  either  was  such  as  might  subject  him  to 

penalties  and  forfeitures,  or  it  was  immaterial  to  the 

plaintiff,  the  demurrer  was  overruled  ;  the  court 

declaring  a  clear  opinion  that  the  bond  was  not 

simoniacal,  but  conceiving  that  the  discovery  might 

be  material  to  support  a  defence  to  a  quare  impeditf 

upon  this  ground,  "  that  the  bond  put  the  clerk 

under  the  power  of  tbe  patron,  in  derogation  of 

the  rights  of  the  ordinary  (s)." 

ttedfscote^t°o      ^^'  Thc  situatiou  of  a  defendant  may  render  it 

fendant  to%uni  impropcr  for  a  court  of  equity  to  compel  a  disco- 

iehment,    penal-  •    i  i  i  i  •  i   •  1 

ties,  forfeiture,  vorv,  cithcr  bccausc  the  discovery  may  subject  the 

or  hazard   of  ti-  -^  _  J  J  J 

n  Qdi  defendant  to  pains  or  penalties,  or  to  some  forfei- 
^  ture  ;  or  something  in  the  nature  of  a  forfeiture  ; 
or  it  may  hazard  his  title  in  a  case  where  in  con- 
science he  has  at  least  an  equal  right  with  the  per- 
son requiring  the  discovery,  though  that  right  may 
not  be  clothed  with  a  perfect  legal  title  (t)  (1). 

(5)  Bishop  of  London  v.  Ffytche,  equity  have  proceeded  in  the  cases 

in    Chan.    Trin.  1781.      In    conse-  considered  under  the  next  head.    See 

quence  of  this    decision  an   answer  the  cases  reported  in  1  Bro.  C.  C.  96^ 

was  put  in  admitting  the  bond ;  and  and  Cunningham's  Law  of  Simony, 

a  quare   impedit  being    brought,   it  See  also  Grey  v.  Hesketh,  Ambl.  268. 

was  finally  determined  in  the  house  (t)  See   Ivy  v.  Kekewich,  2   Ves. 

of  lords  against  the  patron,  and   he  Jun.  679  ;  Lord   Shaftesbury  v.  Ar^ 

consequently    lost    his    presentation,  rowsmith,  4   Ves.  66;  13  Ves.  251; 

Perhaps,    therefore,    the    overruling  15  Ves.  378  ;   Wrightv.  Plumtree,3 

the  demurrer  was  in  contradiction  to  Madd.  481 ;  Glegg  v.  Legh,  4  Madd. 

the    principles  on  which   courts    of  193. 


(1)  A  defendant  is  not  bound  to  answer  or  disclose  any  facts  show- 
ing that  he  has  been  guilty  of  any  act  for  which  he  is  liable  to  an  in- 
dictment, or  which  can  subject  him  to  a  penalty  or  forfeiture.  Taylor 
V.  Bruen,2  Barb.  Ch.  R.  301. 


S.  II.  p.  I.]        DEMURRERS.  229 

It  is  a  general  rule,  that  no  one  is  bound  to  an- 
swer so  as  to  subject  himself  to  punishment,  in 
whatever  manner  that  punishment  may  arise,  or  230 

whatever  may  be  the  nature  of  the  punishment  (u). 
If  therefore  a  bill  requires  an  answer  which  may  (x) 
subject  the  defendant  to  any  pains  or  penalties,  he 
may  demur  to  so  much  of  the  bill  (y).  As  if  a  bill 
charges  any  thing  which,  if  confessed  by  the  an- 
swer, would  subject  the  defendant  to  any  criminal 
prosecution  (z)  (2),  or  to  any  particular  penalties,  as 

(u)  2  Ves.  245,  and  the  authorities  guarded  as  any  admission  of  the  truth 

referred    to  in  note.     1    Eq.  Ca.  Ab.  of  the  charge  ;  16  Ves.  69. 

131  ;  II  Ves.  525  ;  2  Swanst.  214.  (z)  East  India  Company  v.  Camp- 

(x)  1  Atk.  539  ;  1  Swanst.  305.  bel,  1  Ves.  246  ;  Ckelwynd  v.  Lin- 

(y)  See  Billing  v.  Flight,  1  Madd.  rfo«,2  Ves.451  ;  Cartiorigfitv.  Green, 

R.230(l).     And  it  may  be  observed,  8  Ves.  405  ;   14  Ves.  65. 

that  such  a  demurrer  will  not  be  re- 


(1)  [Patterson  v.  Patterson,  1  Hay  ward's  (>Jorth  Carolina)  R.  167; 
Fleming  V.  St.  John.  2  ISim.  181  ;  Wolf  v.  Wolffs  executor,  2  Harris 
&  Gill,  382  ;  Livingston  v.  Tompkins,  4  J.  C.  R.  415;  Lambert  v.  Peo- 
ple, 9  Cowen,  578;  Northrop  v.  Hatch,  6  Day's  R.  361  ;  Leggetl  v. 
Poslleij,  2  Paige's  C.  R.  699.  But  the  Revised  Statutes  of  the  State 
of  New- York,  and  a  statute  since  passed,  have  provisions  which  compel 
a  defendant  to  make  a  discovery  in  many  cases  where  criminal  prose- 
cution and  penalties  can  take  place  and  be  exacted.  Thus,  a  defend- 
ant must  answer  to  a  earning  transaction  at  the  suit  of  the  loser  or  any 
other  person.  1  R.  S.'664,  §  19.  As  to  moneys  illegally  received  for 
brokerage,  /i.  709,  J  4.  As  to  moneys  and  things  taken  usuriously. 
lb.  772,^6.  And,  also,  in  all  cases  where  the  defendant  is  charged 
with  being  a  party  to  a  fraudulent  conveyance.  Laws  of  1833,  p.  17. 
See  the  form  of  a  demurrer  where  a  discovery  would  subject  tiie  de- 
fendant to  pains,  penalties  and  forfeitures,  Willis,  477.  And  see  page 
186,  a/;/e.] 

(2)  A  bill  of  discovery  is  demurrable  where  the  whole  object  of  it  is 
to  obtain  a  discovery  of  an  illegal  assault  and  imprisonment,  with  the 
view  of  subjecting  the  defendant  to  penal  consequences.  Glynn  v. 
Houston,!  Keen,  329.  And  it  would  seem  that  a  bill  of  discovery 
cannot  be  sustained  in  aid  of  an  action  for  a  mere  personal  tort. 
lb.  337. 


230  DEMURRERS.  [ChAP.  II^ 

an  usurious  contract  (a),  maintenance  (h),  cham- 

231  perty(6),  simony  (ri).     And  in  such  cases,  if  the  de- 
fendant is  not  obhged  to  answer  the  facts,  he  need 

[195]     not  answer  the  circumstances,  though  they  have 
not  such  an  immediate  tendency  to  criminate  (<?) 

If  the  plaintiff  is  alone  entitled  to  the  penalties, 
and  expressly  waives  them  by  his  bill,  the  defend- 

(o)  Fenton  v.  Blomer,  Tothill,  135  ;  Wms.  375  ;  Wallis  v.  Duke  of  Port- 
Earl  of  Suffolk  V.  Green,  1  Atkyns,  land,  3  Ves.  494. 
450;  2  Atk.  393  ;  22  Vin.  Ab.  Usury.  (c)  See  2  Sim.  &  Stu.  252. 
Q.  4  ;  Whitniore  v.  Francis,  8  Pri.  Ex.  ((/)  Att.  Gen.  v.  Sudell,  Free,  in  Ch. 
R.  616.  214  ;  1   Meriv.  401.    But  see  p.  22^, 

(b)  Penrice  v.  Parker,  Rep.  Temp,  note  (s). 

Finch.  75;  Sharp    v.  Carter,   3  P.  (e)  1  Ves.  247,248;  19  Ves.  227, 

228. 


The  court  will  not  compel  a  defendant  to  answer  allegations, 
where  there  is  a  reasonable  probability  that  by  so  doing  he  would 
subject  himself  to  an  indictment  for  a  fraud.  Maccallum  v.  Turton, 
2  Y.  &  J.  IBS. 

Where  a  bill  seeks  a  discovery  of  transactions  which  would  subject 
the  defendant  to  a  criminal  prosecution  under  a  statute,  the  defendant 
need  not  plead  the  statute,  but  may  demur  to  the  bill.  Fleming  v.  Si. 
John,  2  Sim.  181. 

■  (1)  [In  a  demurrer  on  this  ground,  it  is  necessary  to  state  in  it  the 
why  and  wherefore  a  forfeiture  would  be  the  consequence  of  the  dis- 
covery. Sharp  V.  Sharp,  3  J.  C.  R.  407  ;  and  see  Le  Roy  v.  Vedder, 
on  appeal,  1  J.  R.  417  ;  Le  Roy  v.  Servis,  1  C-  C.  E.  1  ;  S.  C.  2  lb. 
175  ;  Wolf  V.  Wolfs  executor,  2  Harris  &,  Gill,  382.  In  TaJbnt  v. 
Smith,  Ridg.  Lap.  2  Scho.  (Irish)  R.  306,  a  defendant  demurred  to  a 
bill  seeking  discovery  which  would  have  made  him  liable  to  a  penalty 
under  the  statute  of  usury.  But  it  appearing  that  the  statute  of  limi- 
tations had  barred  the  penal  action,  it  was  held  that  there  was  no 
ground  for  a  demurrer.  The  contrary  appears  to  have  been  held  ia 
Connecticut.  See  the  case  of  Northrop  v.  Hitch,  6  Day's  R.  361 ; 
also  Lambert  v.  The  People,  9  Cowen's  R.  678.  See  as  to  officers  of 
a  corporation  objecting  to  answer  on  the  ground  that  it  may  subject 
the  company  to  a  forfeiture  of  its  charter.  Robinson  v.  Sjnith,  3 
Paige's  C.  R.  222.] 


S.  II.  p.  I.]  DEMURRERS.  231 

ant  shall  be  compelled  to  make  the  discovery  ;  for 
it  can  no  longer  subject  him  to  a  penalty  (e).  As 
if  a  rector,  or  impropriator  or  vicar  files  a  bill  for 
tithes,  he  may  w^aive  the  penalty  of  the  treble 
value  (/)  to  which  he  is  entitled  by  the  statute  of 
2  &  3  Edward  VI.,  and  thus  become  entitled  to  a 
discovery  of  the  tithes  subtracted.  And  though  a 
discovery  may  subject  a  defendant  to  penalties  to 
which  the  plaintiff  is  not  entitled,  and  which  he  con- 
sequently cannot  waive,  yet  if  the  defendant  has  ex- 
pressly covenanted  not  to  plead  or  demur  to  the. 
discovery  sought,  which  is  the  common  case  with 
respect  to  servants  of  the  East  India  company,  he 
shall  be    compelled  to   answer  (g)  (1).     Where,  232 

too,  a  person  by  his  own  agreement  subjects  him- 
self to  a  payment  in  the  nature  of  a  penalty  if  he 
does  a  particular  act,  a  demurrer  to  discovery  of 
that  act  will  not  hold  (A).     Thus  where  a  lessee 

(c)  Lord  Uxbridgev.  Staveland,  1  Atkins,  2  Vee.  108  ;  and  see  Paxton 

Ves.  56  ;  and  see  1  Vern.  129  ;  Bui-  v.  Douglas,  16  Vea.  239. 

lock  V.  Richardson,  II  Vea.  313.  {h)  See  Morse    v.    BucJctoorth,  2 

(/)  Anon.  1  Vera.  60.  Vern.  443  ;  E.  I.  Comp.  v.  Neave,  5 

(g)  South  Sea  Comp.  v.  Bumsted,  Ves.  173. 
1  Eq.  Ca.  Ab.  77  ;  JB.   I.  Comp.  v. 

(1)  A  person  who  has  been  duly  admitted  a  broker  or  agent  by  the 
mayor  and  aldermen  of  the  city  of  London,  must  answer  a  bill  of  discovery 
in  aid  of  an  action  for  misconduct,  drought  aL;ainst  him  by  his  em- 
ployer, althougli  the  discovery  will  subject  him  to  penalties  and  to  an 
indictment  for  perjury  :  for  otherwise  the  bond  given,  and  the  oath 
taken  by  such  persons  on  their  admission,  instead  of  securing  their 
honesty,  wouM  only  serve  as  a  screen  to  them  in  the  comnission  of 
the  grossest  fraud.-;. 

And  a  person  who  has  not  been  admitted  a  broker  or  agent,  but 
acts  as  one,  must  answer,  although  he  may  thereby  eulject  himself  to 
a  penalty  for  acting  wiliioul  having  been  admitted.     Green  v.  Weaver,  • 

1  Sim.  404. 


232  DEMURRERS.  [ChAP.  II. 

covenanted  not  to  dig  loam,  clay,  sand  or  gravel, 
except  for  the  purpose  of  building  on  the  land  de- 
mised, with  a  proviso  that  if  he  should  dig  any  of 
[196]  those  articles  for  any  other  purpose,  he  should  pay 
to  the  lessor  twenty  shillings  a  cart-load,  and  he 
afterwards  dug  great  quantities  of  each  article  ; 
upon  a  bill  for  discovery  of  the  quantities,  waiving 
any  advantage  of  possible  forfeiture  of  the  term;  a 
demurrer  of  the  lessee,  because  the  discovery  might 
subject  him  to  a  payment  by  way  of  penalty,  was 
overruled  (g). 

And  a  party  shall  not  protect  himself  against  re- 
lief in  a  court  of  equity,  by  alleging  that  if  he  an- 
swers the  bill  filed  against  him,  he  must  subject 
himself  to  the  consequences  of  a  supposed  crime, 
though  the  court  will  not  force  him  by  his  own  oath 
to  subject  himself  to  punishment ;  and  therefore,  in 
the  case  of  a  bill  to  inquire  into  the  validity  of  deeds 
upon  a  suggestion  of  forgery,  the  court  has  enter- 

233  tained  jurisdiction  of  the  cause  ;  and  though  it  has 
not  obliged  the  party  to  a  discovery  of  any  fact 
which  might  tend  to  show  him  guilty  of  the  crime, 
has  directed  an  issue  to  try  whether  the  deeds 
where  forged  (/j). 

It  should  seem  that  a  demurrer  will  also  hold  to 
any  discovery  which  may  tend  to  show  the  defend- 
ant guilty  of  any  moral  turpitude,  as  the  birth  of  a 
child  out  of  wedlock  (i).  But  a  mother  has  been 
compelled  to  discover  where  her  child  was  born, 
though  it  might  tend  to  show  the  child  to  be  an 

ig)   Richards  v.    Cole,   or  Brod-     Ab.  131,  p.  11  ;  Att.  Gen.v.  Sudell, 
repp   V.    Cole,  in  Chan.  Hil.    Vaca-     Prec.  in  Chan.  214. 
tion,  1779.  (t)  Parker,  163  ;2Ves.451 ;  Franco 

(A)  2  Ves.  246.  See  also  1  Eq.  Ca.     v.  Bolton,  3  Ves.  368  ;  King  v.  Burr, 

3  Meriv.  698. 


S.  II.  p.  I.]  DEMURRERS.  233 

alien  (k)  ;  for  that  was  not  a  discovery  of  any  ille- 
gal act,  or  of  any  act  which  could  affect  the  charac-     [197] 
ter  of  the  defendant  (/). 

A  demurrer  will  likewise  hold  to  a  bill  requiring 
any  a  discovery  which  may  subject  the  defendant  to 
forfeiture  (m)  (1)  of  interest:  as  if  a  bill  is  brought 
to  discover  whether  a  lease  has  been  assigned 
without  license  (n)  ;  or  whether  a  defendant,  enti- 
tled during  widowhood  (o),  or  liable  to  forfeiture  of 
a^legacy  in  case  of  marriage  without  consent  (p)^ 
is  married  ;  or  to  discover  any  matter  which  may 
subject  a  defendant  entitled  to  any  office  or  fran- 
chise to  a  quo  warranto  (</).  But  if  the  plaintiff 
is  alone  entitled  to  the  benefit  of  the  forfeiture,  and 
expressly  waives  (r)  it  by  the  bill,  as  in  the  case  of 
a  bill  for  discovery  of  waste  (s),  a  demurrer  will  234 

not  hold  ;  for  the  waiver  gives  the  court  a  ground 
of  equity  to  award  an  injunction,  if  the  plaintiff 
sues  for  the  forfeiture  {{).  If  the  discovery  sought 
is  of  a  matter  which  would  show  the  defendant  in- 
capable of  having  any  interest  or  title  ;  as  whether 
a  person  claiming  a  real  estate  under  a  devise  was 
an  alien,  and  consequently  incapable  of  taking  by 

{k)  An.  Gen.  v.  Duplessis,  2  Ves.  Atk.  392  ;  Chancey  v.  Fenhoulet,  2    , 

287,  ib.  494.  Ves.  265. 

(Z)  1  Meriv.  400.  (q)  1  Eq.  Ca.  Ab.  131,  q.  10. 

(m>  Tothill,  69.  (r)  1  Ves,  56  ;  see  above,  p.  231, 

(n)  Lord  Uxhridge  v.  Siaveland,  note  (e). 

I  Ves.  56.  (s)  2  Atk.  393  ;  Att.  Gen.  v.  Vin- 

(0)  Monnins  v.  Monnins,  2  Chan,  cent,  2  Eq.  Ca.  Ab.  378  ;  -S.  C.  cited 
Rep.  68.  Com.  R.  664,  (2). 

(/j)   Chauncey    v.     Tahourden,  2  (t)  1  Ves.  56. 

(1)  A  defendant  can  never  be  compelled  to  criminate  himself,  or  to 
make  disclosures  which  will  subject  him  to  forfeiture.  Salmon  v. 
ClageU.3  Bland's  Ch.  R.  125. 

(2)  [See  the  form  of  a  demurrer  in  a  case  where  such  forfeiture  is, 
not  waived.     Equity  Draft.  82.] 


^^^  DEMURRERS.  [ChAP.  II, 

purchase  (u)  ;  a  demurrer  will  not  hold.  And 
where  a  devise  over  of  an  estate  in  case  of  marriage 
[198]  was  considered  as  a  conditional  limitation,  and  not 
as  a  forfeiture,  a  demurrer  to  a  bill  for  a  discovery 
of  marriage  was  overruled  (x). 

A  defendant  may  in  the  same  manner  demur  to 
a  discovery  which  may  subject  him  to  any  thing  in 
the  nature  of  a  forfeiture  (y)  ;  as  where  a  discovery 
was  sought,  whether  the  defendant  was  educated 
in  the  popish  religion,  by  which  he  might  have  in- 
curred the  incapacities  in  the  statute  11  «fe  12 
Will.  III.  (z)  ;  or  whether  a  clergyman  was  present- 
ed to  a  second  living,  which  avoided  the  first  (a). 

But  where  a  person  against  whom  a  commission, 
of  bankrupt  had  issued,  had  brought  actions  against 
235  ^^^  assignees  under  the  commission,  disputing  its 

validity,  and  particularly  insisting  that  he  had  not 
been  a  trader  within  the  meaning  of  the  bankrupt 
laws,  and  in  those  actions  the  validity  of  the  com- 
mission had  been  established  ;  and  the  assignees 
filed  a  bill  against  him,  stating  these  facts,  and  that 
being  harassed  by  these  actions,  and  threatened 
with  other  actions,  they  were  not  able  to  distribute 
the  eflfects  under  the  commission,  and  therefore 
praying  a  perpetual  injunction  to  restrain  further 

(u)  Att.  Gen.  v.  Duplessis,  Parker,  The  18  Geo.  III.  c.  60,  the  31  Geo, 

144.  III.  c.  32,  and  the  43  Geo.  III.  c.  39. 

{x)  2  Aik.  393 ',  Lucas  y.  Evans,  3  do  not  entirely  remove  these  incapa- 

Atk.  260  ;  2  Ves.  265.  cities.     Rut  they  are  removed  by  the 

(y)  3  Atk.  457.  (1).  10  Geo.  IV.  c.  7,  s.  23. 

(z)  Jones  V.  Meredith,  Com.  661  ;  (a)  Boieler  v.  Allington,    3  Atk. 

and  see  ib.  664 ;  Smith  v.  Read,  3  453. 
Bac.  Ab.  800  ;  1  Atk.  527  ;  2  Ves.  394. 

(1)  [Lambert  v.  The  People,9  Cowen's  R.  678;  and  see  pages  194, 
196,  ante.] 


S.  II.  p.  I.]  DEMURRERS.  235 

actions,  and  requiring  a  discovery,  amongst  other 
things,  of  acts  of  trading,  a  demurrer  to  that  dis- 
covery was  overruled  (h). 

If  a  defendant  has  in  conscience  a  right  equal  to  [199] 
that  claimed  by  a  person  filing  a  bill  against  him, 
though  not  clothed  with  a  perfect  legal  title,  this 
circumstance  in  the  situation  of  the  defendant  ren- 
ders it  improper  for  a  court  of  equity  to  compel  him 
to  make  any  discovery  which  may  hazard  his  title  ; 
and  if  the  matter  appears  clearly  on  the  face  of  the 
bill,  a  demurrer  will  hold  (c).  The  most  obvious 
case  is  that  of  a  purchaser  for  a  valuable  consider- 
ation without  notice  of  the  plaintiff's  claim  (d). 
Upon  the  same  principle  a  jointress  may  in  many 
cases  demur  to  a  bill  filed  ajjainst  her  for  a  disco- 
very  of  her  jointure  deed,  if  the  plaintiff  is  not  ca- 
pable of  confirming,  or  the  bill  does  not  offer  to 
confirm,  the  jointure,  and  the  facts  appear  suffi- 
ciently on  the  face  of  the  bill  ;  though  ordinarily  236 
advantage  is  taken  of  this  defence  by  way  of 
plea  (c). 

This  arises  from  that  singularity  in  the  jurispru- 
dence of  this  country,  produced  by  the  establish- 
ment of  the  extraordinary  jurisdiction  of  courts  of 
equity  distinct  from  the  ordinary  jurisdictions  no- 
ticed in  a  former  page,  and  necessarily  creating  a 

{h)  Chambers  v.   Thomson,  1  Nov.  (c)  See  Glegg  v.  Legh,  4  Madd. 

1793,  rep.  4  Bio.  C.  C.  434,  affir.Ded,  193(1). 

on  rehearing,  March,  1 794.  See  Pro-  (d)  2  Ves.  Jr.  458 ;  Steeet  v.  South- 

lector  and  Lord    Lumley,  Mardres,  cole,  2  Bro.  C.  C.  66. 

22.   See  also  Selby  v.  Crew,  I  Anst.  (c)   Chamherliiin  v.  Kuapp,  I  Alk. 

•504.  52  ;  2  Ves.  450 ;  2  Ves.  662. 

(1)  [Hartley  v.  O'Flaherly,  1  Beatty'a  R.  77.  And  see  the  form  of 
such  a  demurrer,  Willie,  479.] 


236  DEMURRERS.  [ChAP.  II. 

distinction  between  legal  and  equitable  rights  (/). 
Where  the  courts  of  equity  are  called  upon  to  ad- 
minister justice  upon  grounds  of  equity  against  a 
legal  title,  they  allow  a  superior  strength  to  the  legal 
title  when  the  rights  of  the  parties  are  in  conscience 
equal ;  and  where  a  legal  title  may  be  enforced  in 
[200]     a  court  of  ordinary  jurisdiction  to  the  prejudice  of 
an  equitable  title,  the  courts  of  equity  will  refuse 
assistance  to  the  legal  against  the  equitable  title 
where  the  rights  in  conscience  are  equal. 
of^^nordemuT      If  the  grouuds  on  which  a  defendant  might  de- 
'"^"  mur  to  a  particular  discovery  appear  clearly  on  the 

face  of  the  bill,  and  the  defendant  does  not  demur 
to  the  discovery,  but,  answering  the  rest  of  the  bill, 
declines  answering  to  so  much,  the  court  will  not 
compel  him  to  make  the  discovery  (g).  But  in 
general,  unless  it  appears  clearly  by  the  bill  that 
the  plaintiff  is  not  entitled  to  the  discovery  he  re- 
quires, or  that  the  defendant  ought  not  to  be  com- 
pelled to  make  it,  a  demuiTer  to  the  discovery  will 
237  not  hold  ;  and  the  defendant,  unless  he  can  protect 

himself  by  plea,  must  answer. 
Demurrer  to  a      Where  thc  solc  objcct  of  a  bill  is  to  obtain  a  dis- 

bill  of  discovery 

for  want  of  par-  covcry,  some  grounds  of  demurrer,  which  if  the  bill 

ties,  or  for  want  J  '  o  ' 

cLTt*h4  bans  prayed  relief  would  extend  to  discovery  as  well  as 
ofpartofTmlt^  to  the  relief,  will  not  hold.     Thus  a  demurrer  to 

ter,  or  for  mul-         i   •  1 1    r>  i  • 

tifariousness.  Q,  bill  for  a  discovcry  merely  will  not  hold  for  want 
of  parties,  for  the  plaintiff  seeks  no  decree  ;  nor,  in 
general,  for  want  of  equity  in  the  plaintiff's  case  for 
the  same  reason  ;  nor  because  the  bill  is  brought 
for  the  discovery  of  part  of  a  matter,  for  that  is 

(/)  2  Vee.  573,  574.  P.  Wms.  235  ;  1  Meriv.  401.   See  be- 

(g)  See  Wroitesley  v.  Bendish,  3     low,  Chap.  II.  sect.  2,  Fart  3. 


S.  II.  p.  I.]  DEMURRERS.  237 

merely  a  demurrer  because  the  discovery  would  be 
insufficient.  But  it  should  seem  a  demurrer  would 
hold  to  abill  for  discovery  of  several  distinct  matters 
against  several  distinct  defendants(l).  For  though  of  ducoTry.^'" 
a  defendant  is  always  eventually  paid  his  costs  up- 
on a  bill  of  discovery  (2)  if  both  parties  live,  and  [201] 
theplaintiffbyamendment of  hisbill  doesnotextend 
it  to  pray  relief,  yet  the  court  ought  not  to  permit 
the  defendant  to  be  put  to  any  unnecessary  ex- 
pense, as  either  the  plaintiff  or  defendant  may  die 
pending  the  suit  (^). 

After  an  answer  to  a  bill  of 'discovery,  when  time 
for  excepting  to  it  as  insufficient  is  expired,  the  de- 
fendant may  apply  for  costs  as  a  matter  of  course 
(A),  imless  the  plaintiff  shall  in  the  mean  time  have 
obtained  an  order  to  amend  his  bill  ;  which  maybe  238 

done  either  to  obtain  a  fuller  discovery,  or,  if  the 
case  appearing  on  the  answer  will  warrant  the  pro- 
ceeding, by  adding  to  the  bill  a  prayer  for  relief  (i). 

Demurrers  to 
,,r,  ,  ,x,...  1  ,,     bills  not  original 

(§•)  See  next  page  and  notes  (p)  and     cial    circumstances,   been   extended,  or  bills  in  the 

(q)  page  239.  See  Baring  v.  Prinsep,  1   Madd.  R.  ^^'"1,^8°^  °^^' 

(A)  See  4  Ves.  746  ;   Hewart  v.  526  (3). 

Semple,  5  Ves.  86 ;  Nohle  v.  Garland,         (i)  On  this  subject  see  Butterworth 

1  Madd.  344.  But,  it  seems  that  the  v.  Bailey,  15  Ves.  358.  [AlsoMDou- 

time    witliin  which    the    exceptions  g'a// v.  Mi/n,  2  Paige's  C.  R.  201.J 

must  be  filed  has  latterly,  under  spe- 

(1)  A  bill  may  be  filed  against  several  persons  relative  to  matters 
of  the  same  nature,  formii  g  a  connected  .-^eries  of  acts,  nil  intended  to 
defraud  and  injure  the  p'ainiifrs,  and  in  which  all  the  defendants  were, 
more  or  lei=s,  concerned,  though  not  jointly  in  each  act.  Brinkerhoff  v. 
Brown,  6  Johns.  Ch.  R.  139. 

(2)  By  the  41st  order  of  Aug.  1841,  "Where  a  defendant  in  equity 
fileis  a  cross-bill  against  the  plaintiff  in  equity  for  discovery  only,  the 
costs  of  such  bill,  and  of  the  answer  thereto,  shall  be  in  the  discretion 
of  the  court  at  the  hearing  of  the  original  cause. 

(3)  Only  six  weeks  are  allowed  by  the  ISthorderof  May,1846,art.  22. 


238  DEMURRERS.  [ChAP.  II. 

Demurrers  have  hitherto  been  noticed  with  refe- 

bnuTf"revivor°  Tcnce  oiily  to  Original  bills.     As  every  other  kind  of 

bill  is  a  consequence  of  an  original  bill,  many  of  the 

causes  of  demurrer  which  will  apply  to  an  original 

Demurrer  toa  bill  will  also  apply  to  cvcry  other  kind  ;  but  the  pe- 

forwant ofpor-  cuHar  form  and  object  of  each  kind  afford  distinct 

ties.  •' 

causes  of  demurrer  to  each.     Thus  if  a  bill  of  re- 
vivor (1)  does  not  show  a  sufficient  ground  for  re- 


(1)  Where  a  bill  is  filed  by  a  husband  and  wife,  and  the  cause  is 
heard  on  farther  directions,  after  the  death  of  the  wife,  in  the  absence 
of  her  personal  representative,  and  afterwards  her  husband  dies,  and 
thereupon  a  bill  of  revivor  is  filed  against  his  personal  representative, 
a  demurrer  Co  such  a  bill  on  the  ground  that  the  personal  representa- 
tive of  the  wife  is  not  before  the  court,  will  be  overruled  ;  for  the  plain- 
tiff in  the  bill  of  revivor  is  entitled  to  have  the  suit  placed  in  the  same 
plight  and  condition  in  which  it  was  at  the  time  of  the  abatement  in 
respect  of  which  the  revivor  is  sought;  and  if  the  proceedings  were 
then  imperfect,  it  is  not  the  office  of  a  demurrer  to  a  bill  of  revivor  to 
correct  the  imperfection.     Metcalfe  v.  Metcalfe,  1  Keen,  74. 

When  bill  was  filed  against  de  endant  as  executrix  of  her  deceased 
husband,  to  reach  property  she  had  received  as  executrix,  but  vviiich  in 
equity  was  complainant's,  and  she  died  after  decree  in  their  favor,  the 
surviving  executor  of  the  husband  who  had  not  been  made  parly,  could 
be  brought  in  only  by  an  original  bill  in  nature  of  a  bill  of  revivor  and 
supplement;  and  the  filing  of  a  mere  bill  of  revivor  against  him  was 
improper.  When  bill  of  revivor  filed  against  a  defendant  shows  no 
title  in  complainant  to  revive  as  against  him,  he  should  demur  to  the 
bill,  and  not  put  in  a  plea,  where  no  new  fact  is  brought  forward  which 
in  itself  constitutes  a  bar  to  the  revivor.  And  in  this  court  a  plea 
cannot  be  substituted  in  place  of  demurrer.  Such  a  plea  was  over- 
ruled with  liberty  to  defendant  to  demur,  unless  complainants  thought 
proper  to  amend  their  bill  by  making  it  an  original  bill  in  the  nature  of 
a  bill  of  revivor  and  supplement  and  brin^'ing  all  proper  parties  before 
the  court.     Evertson  v.  Ogden,  8  Paige's  R.  276-7,  275. 

When,  after  a  bill  was  filed  to  set  aside  a  transfer  of  complainant's 
real  estate,  for  fraud,  complainant  died,  leaving  six  children  heirs  at 
law,  one  of  which  was  wife  of  a  defendant  in  the  original  suit;  and 
the  other  five  filed  a  bill  of  revivor  and  supplement  making  their  co- 
heir defendant  with  iier  husband,  and  the  other  defendants  in  the  original 
bill;  whereon  the  latter  demurred  on  ground  that  she  should  have  been 


S.   II.   p.  I.]  DEMURRERS.  238 

viving  the  suit  (k),  or  any  part  of  it  (I),  either  by 
or  against  {7n)  the  person  by  or  against  whom  it  is     [202] 
brought,  the   defendant   may  by   demurrer   show  239 

cause  against  the  revival  (n)  (1).  Indeed  though 
the  defendant  does  not  demur,  yet  if  the  plaintiff 
does  not  show  a  title  to  revive,  he  will  take  nothing 
by  his  suit  at  the  hearing  {o)  (2).  A  demurrer  will 
also  in  many  cases  hold  to  a  bill  of  revivor  brought 
singly  for  costs  (p)  :  the  court  in  general  not  per- 
mitting a  suit  to  be  revived  for  that  purpose  only, 
except  where  the  costs  have  been  actually  taxed 
before  the  abatement  happened  (/j)  (3). 

(A)  Humphreys  v.  Incledon,D\ck.         (/?)  2  Eq.  Ca.  Ab.  3  ;  2  Ves.  juu. 

38  ;  Harris  v.  Pollard,   3  P.  Wms.  315  ;  10  Ves.  572  ;  Jwpp  v.  Geering, 

348.  5  Madd.  375. 

(Z)  1  Eq.  Ca.  Ab.  3,  4.  (?)  Hall  v.  Smith,  1  Bro.  C.  C.  438 : 

(m)  University  College  v.  Foxcroft,  Morgan  v.  Scudamore,  2  Ves.  Jun. 

2  Ch.  Rep.  244.  313  ;  S.  C.  3  Ves.  195  ;  Lowten  v. 

(n)  3  P.  Wme.  348.  Mayor  and  Commonalty  of  Colches- 

(0)  3  P.  Wms.  348  ter,  2  Meriv.  113  ;  3  Madd.  377. 

made  complainant,  and  that  the  supplemental  matter  in  the  bill  waa 
improper,  held  on  appeal  from  Vire-Chancellor,  allowing  the  demurrer, 
that  as  wife  could  not  join  the  suit  against  her  hu.sbarid,  except  by  her 
next  friend,  and  that  even  then  the  suit  could  not  be  brought  in  her 
name  without  her  consent;  and  that  under  the  circumstances,  it  was 
not  necessary  to  aver  that  she  refused  to  join  the  otiier  heirs  in  the  bill 
of  revivor  ;  and  that  if  supplemental  matter  was  improperly  added  to  the 
i)iil,  it  furnished  no  reason  to  demur  to  the  whole  bill,  but  should  have 
been  to  the  supplemental  matter  only,  tlie  decision  of  the  Vice-Chan- 
celior  was  reversed  and  the  cause  directed  to  stand  revived.  Rati' 
d/)lph  V.  Dickerson  et  al.,  5  Paiye's  R.  517. 

(1)  [  Thornton  v.  Pellatt,  1 1  Price,  733.  See  the  form  of  a  demurrer, 
Willis,  481.] 

(2)  [It  is  said  in  Lewis  v.  Bridgman,  2  Sim.  465,  that  to  prevent  a 
suit  from  being  revived,  either  a  plea  or  demurrer  must  be  put  in  to  it; 
and  that  answer  insisting  upon  tlie  plaintiff's  having  no  right  is  not 
sufficient.] 

(3)  A  bill  of  revivor  cannot  be  filed  merely  for  costs  by  the  personal     Bm  of  reriTor 
representative  of  a  defendant  to  a  bill  which  lias  been  dismissed  with  forco***- 
costs.     Andrews  v.  Lockicood,  15  Law  J.  285,  V.  C.  E. 

21 


239  DEMURRERS.  [ChAP.  II. 


miSilStar"      If  a  supplemental  bill  is  brought  upon  matter 
^"'*"  arising  before  the  filing  of  the  original  bill,  where 

the  suit  is  in  that  stage  of  proceeding  that  the  bill 
may  be  amended,  the  defendant  may  demur  (r).  If 
a  bill  is  brought  as  a  supplemental  bill  upon  mat- 
ter arising  subsequent  to  the  time  of  filing  the 
original  bill  against  a  person  who  claims  no  interest 
arising  out  of  the  matters  in  litigation  by  the  former 
bill,  the  defendant  to  the  bill  thus  brought  as  a 
240  supplemental  bill  may  also   demur ;  especially  if 

the  bill  prays  that  he  may  answer  the  .matters 
charged  in  the  former  bill.  These,  however,  are 
r2031  grounds  of  demurrer  arising  rather  from  the  plain- 
tiff's having  mistaken  his  remedy,  than  from  his 
being  without  remedy. 
Demurrers  to      A  cross-bill  haviuff  nothiuff  in  its  nature  difl"erent 

cros8-bill«.  "  "^ 

from  an  original  bill,  with  respect  to  which  de- 
murrers in  general  have  been  considered,  except 
that  it  is  occasioned  by  a  former  bill,  there  seems 
no  cause  of  demurrer  to  such  a  bill  which  will  not 
equally  hold  to  an  original  bill.  And  a  demurrer 
for  want  of  equity  will  not  hold  to  a  cross- bill  filed 
by  a  defendant  in  a  suit  against  the  plaintiff"  in  the 
same  suit  touching  the  same  matter.  For  being 
drawn  into  the  court  by  the  plaintiff"  in  the  original 
bill,  he  may  avail  himself  of  the  assistance  of  the 
court,  without  being  put  to  show  a  ground  of  equity 

(r)  Baldwin  v.  Macknown,  3  Atk.  Lord  Harewood,\1Vi^s  144  \  Adams 

817  ;  2   Madd.  R.  387  (1)   ;    or,  if  v.  Z)oM!(/i/(o-,2  Madd.  R.5:3 ;  Ibid.  388. 

the  matter  should  have  arisen  subse-  [Swan  v.  Swan,  7  Price  518.  And  see 

quently,  but  be  immaterial,  the  defeu-  Buwi/erv.  Bright,  13  Price,  31 G.] 
dant  may  also  demur.     See  Milner  v. 

(1)   [Slafford  V.  Howlelt,  1    Paige's  C.  R.  200.     See  the  form  of  a 
demurrer,  Willi?,  482.] 


S.  II.  p.  I.]  DEMURRERS.  240 

to  support   its  jarisdiction  (s),  a    cross-bill  being 
generally  considered  as  a  defence  (t)  (1). 

A  bill  filed  by  the  direction  of  the  court  for  the  bnfsX'dby'th^ 

/,,^...j  ^  ,.  ^      direction  ot  the 

purpose  ot  obtaining  its  decree  touching  some  mat-  coun. 
ter  not  in  issue  by  a  former  bill,  or  not   in   issue 
between  the  proper  parties,  does  not  seem  liable 
to  any  peculiar  cause  of  demurrer.     Indeed,  being 
exhibited   by  order  of  the  court  upon  hearing  of  241 

another  cause,  there   is  little  probability  that  such        \ 
a  bill   should  be  liable,  in  substance,  to  any   de- 
murrer. 

The  constant  defence  to  a  bill  of  review  for  error  i,nh^^''^y"w 
apparent  upon   a  decree  has  been  said  to  be  by  ui'^biHrlfTh* 

,  ^    ,  ,  II  .  .  same  nature. 

plea  of  the  decree,  and  demurrer  against  opening 
the  enrolment  (u).  There  seems,  however  no  ne- 
cessity for  pleading  the  decree,  if  fairly  stated  in 
the  bill  (3) :  the  books  of  practice  contain  the  [204] 
forms  of  a  demurrer  only  to  such  a  bill,  and  there 
are  cases  accordingly  (x)  (4). 

{s)Doblev.  Potman,  Elardres,  160;  O'Brien  v.  O'Cuunor,  2  Ball.   &,-  B. 

1  Eden,  R.  190.  146.  (2) 

(0  3  Atkyiis,  812.  (x)  Slingsby  v.  Hale,  1  Ca.  in  Clia. 

(u)  Dancer  V.  Ecett,  1  Vern.  392  ;  122  ;  1  P.  Wms.  139  ;  and  eee  Jones 

Smith  V.  Turner,  1  Vern.  273  ;  2  Atk;  v.  Kenrick,  5  Dro.  P.  C.  244  ;  and  ib. 

534.       See    also    3    Alkyns,    627  ;  248  ;  iu  which  case  the  defendant  ap- 

(1)  By  the  42(1  order  of  Angust,  1841, "Where  a  defendant  inequity 
files  a  cross-bill  for  discovery  only  against  the  plaintiif  in  equity,  the 
answer  to  such  cross-bill  may  be  rcail  and  used  by  the  party  filing  such 
cross-bill,  in  the  saii.e  manner,  and  undi  r  the  same  restrictions,  as  the 
answer  to  a  bill  praying  relief  may  now  be  read  and  used." 

(2)  [And  see  Webb  v.  Pell,  3  Paige's  C.  R.  368.  For  the  form  of 
a  demurrer  to  a  bill  of  review,  see  Willis  483;  2  Equity  Draftsman, 
92,  (2d  edition.)] 

(3)  [Webb  V.  Pell,  3  Paige's  C.  R.  368.] 

(4)  [L<:)rd  Chanc-l'or  Liffi)id  is  reported  to  have  ^id,  in  Lindsay  v. 
Bell,  Finlay's  (Irish)  Index,  thai  a  case  can  hardly  arise  in  which  a 
demurrer  can  be  put  in  to  a  bill  of  review.] 


241  DEMURRERS.  [ChAP.  II. 

On  argument  of  a  demurrer  to  a  bill  of  review 
where  several  errors  in  the  decree  have  been  as- 
signed, if  the  plaintiff  should  prevail  only  in  one, 
the  demurrer  must  be  overruled,  as  one  error  will 
be  sufficient  to  open  the  enrolment ;  and  on  argu- 
ment of  a  demurrer  to  a  bill  of  review  for  error  ap- 
parent in  the  decree,  the  court  has  ordered  the 
defendant  to  answer,  saving  the  benefit  of  the  de- 
murrer to  the  hearing  and  on  the  hearing  has  finally 
allowed  the  demurrer  (?/). 
242  Where  the  decree  has  been  pronounced  above 

twenty  years,  the  length  of  time  is  good  cause  of 
demurrer  (z). 

Where  any  matter  beyond  the  decree  is  to  be  of- 
fered against  opening  the  enrolment,  that  matter  mtfst 
be  pleaded  (a)  ;  and  it  has  been  said  that  length  of 
[205]  time  must  be  pleaded  to  a  bill  of  review,  and  that 
otherwise  the  plaintiff  will  not  have  the  benefit 
of  exceptions,  as  infancy,  coverture,  or  the  like  (b). 

pears  to  have  pleaded  the  decree  en-  (b)  Gregor  v.  Molesworth,  2  Ves. 
rolled  in  bar  of  the  firBt  bill,  which  did  109.  See,  however,  Sherrington  v 
not  state  the  decree,  but  to  have  da-  Smith,  2  Bro.  P.  P.  62,  Toml.  Ed.  : 
murred  alone  to  the  bill  of  review.  Garman  v.  M'Cullock,  5  Bro.  P.  C. 
And  in  Helbut  and  Philpot,  in  the,  597,  Toml.  Ed. ;  see  3  P.  Wms.  287, 
House  of  Lords,  11  March,  1725,  the  note  B,  and  post,  p.  251,  as  to  a  de- 
defendant  demurred  alone  to  a  bill  of  murrer  on  the  ground  of  length  of 
review,and  the  demurrer  was  allowed;  time  ;  and  it  should  seem  that  if  the 
and  the  order  affirmed  by  the  Lords  ;  plaintiff  can  allege  any  exception  to  a 
and  see  Denny  v.  Filmore,  1  Vera  positive  rule,  he  ought  to  do  so  by  his 
135  ;  S.  C.2  Freeman,  172.  bill.     Li  Lytton  v.  Lytton,  4  Bro.  C. 

(y)  Denny  v.  Filmer,  2  Freeman,  C.  441,  the  exception  was  stated  in 

172.  the  bill,  and  admitted  by  the  answer. 

(z)  Edwards  V.  Carroll,  2  Bro.  P.  If  length  of  time  must  be  pleaded,  yet 

C.  88,  Tond.  Ed.;  and  see  Sinythev.  the  plaintiff  can  have  no  benefit  of  ex- 

Clay,  4  Bro.  C.  C.  539,  n.  ;  S.  C.  1  ception  not  stated  in  the  bill,  unless  it 

Bro.  P.  C.  453,  Toml.  Ed.;    <S.  C.  should  be  required  that  the  plea  should 

Ambl.  615.  be  supported  by  averments  negativing 

(a)  See  Hartwell  v.   Townsend,  2  erery  possible   exception,  to   which 

Bro.  P.  C.  107,  Toml.  Ed.  there  seem  to  be  great  odjectious. 


S.  II.  p.  I.]  DEMURRERS.  242 

A  bill  of  review  upon  the  discovery  of  new  matter, 

and  a  supplemental  bill  of  the  same  nature,  being 

exhibited  only  by  leave  of  the  court  (1),  the  ground 

of  the  bill  is  generally  well  considered  before  it  is 

brought ;  and   therefore   in  point   of  substance   it 

can  rarely  be  liable  to  a  demurrer.     But  if  brought 

upon  new  matter,  and  the  defendant  should  think 

that  matter  not  relevant,  probably  he  might  take 

advantage  of  it  by  way  of  demurrer,  although  the  243 

relevancy  ought  to  be  considered  at  the  time  leave 

is  given  to  bring  the  bill  (b).      Bills  in  the  nature  of 

bills  of  review  do  not  appear  subject  to  any  peculiar 

cause  of  demurrer,  unless  the  decree  sought  to  be 

reversed  does  not  affect  the  interest  of  the  person 

filing  the  bill.     If  upon  argument  of  a  demurrer  to 

a  bill  of  review  the  demurrer  is  allowed,  the  order 

allowing  it,  being   enrolled,  is  an  effectual  bar  to     [206] 

another  bill  of  review  (c). 

If  upon  the  face  of  a  bill  to  carry  a  decree  into  biiu*tTcI^y*d^- 
execution  the  plaintiff  appears  to  have  no  right  to  cutfon.'"'^  ^"' 
the  benefit  of  the  decree  the  defendant  may  demur. 

Bills  in  the  nature  of  bills  of  revivor  and  supple-  buu^lS'iht^nv 
ment  are  liable  to  objections  of  the  same  sort  as  revivor  and  anp 

**  _  plement. 

may  be  made  to  the  kinds  of  bills  of  whose  nature 
they  partake. 

In  addition  to  the  several  particular  causes  of  de-  1^^^^^/**' 
murrer  applicable  to   particular  kinds  of  bills,  it 
may  be  observed  that  any  irregularity  in  the  frame 

(6)2Atk.  40.      See  what  is  stated  (c)  See  Denny  v.  Filmer,  2  Ca.  in 

in  regard  to  a  mere  supplemental  bill,  Cha.  133  ;    S.  C.  I  Vern.  135,  and  ib. 

17  Ves.  148,  149  ;  2  Madd.  R.  61  ;  417  ;  Pitt\.  Earlof  Arglass,  ib  441 ; 

and  see  above,  239,  note  (r).  Woota  v.   Tucker,  2  Vern.  120. 

(1)  See  note,  p.  243. 


243  DEMURRERS.  [ChAP.  II. 

of  a  bill  of  any  sort  may  be  taken  advantage  of  by 
demurrer.  Thus  if  a  bill  is  brought  contrary  to 
the    usual    course  of  the  court,  a  demurrer  will 

244  hold  (d)  (1).  As  where,  after  a  decree  directing 
incumbrances  to  be  paid  according  to  priority,  the 
plaintiff,  a  creditor,  obtained  an  assignment  of  an 
old  mortgage,  and  filed  a  bill  to  have  the  advan- 
tage it  would  give  him  by  way  of  priority  over  the 
demands  of  some  of  the  defendants  (e).  This  was 
a  bill  to  vary  a  decree  (2),  and  yet  was  neither  a 

(d)  See  Worthy   v.  Birkhend,  3  3  ;  Ogilvie  v.  Heme,  13  Ves.  563  ; 

Atk.809  ;  S.  C.  2  Ves.  571  ;  Lady  Maule  v.  Duke  of  Beaufort,  1  Russ. 

Chranmlle  v.  Ramsden,    Bunb.  56  ;  R.  349. 
Earl  of  Darlington  v.  Pulteney,  3         (e)  3  Atk.  811. 
Ves.  386 ;  Fletcher  v.  Tollett,  5  Ves. 

(1)  For  an  instance  of  a  demurrer  to  a  bill  on  the  ground  of  Us  having 

been    filed    without  leave  of  the  court,  see  Bainbrigge  v.   Baddeley, 

lOJur.  765. 

Bupplemental       (2)  Where  a  bill  is  filed  acfainst  executors  and  the  supposed  repre- 
Ml  seeking  to  ^      .  ,        ,  ,  ^  .         ,  ,     .    .^  .  /  , 

7turj  a  decree,     sentative  of  a  deceased  executor,  praying  for  an  administration  of  the 

testator's  estate,  and  impeaching  an  account  alleged  to  have  been  frau- 
dulently settled  between  the  surviving  executors  and  the  deceased  exe- 
cutor ;  but  it  appears,  at  the  hearing,  that  the  representative  of  the  de- 
ceased executor  is  not  a  party  to  the  suit;  and  the  decree  therefore 
directs  that  the  account  settled  with  the  deceased  executor  shall  not  be 
disturbed ;  and  then  a  bill,  purporting  to  be  a  supplement  bill,  is  filed, 
bringing  before  the  court  the  personal  representative  of  the  deceased 
executor  and  the  assignees  of  a  bankrupt  executor,  a  demurrer  to  go 
much  of  the  bill  as  seeks  for  an  account  of  the  receipts  of  the  deceased 
executor,  even  though  put  in  by  the  assignees  of  the  bankrupt  exe- 
cutor, will  be  allowed  ;  because,  to  that  extent,  the  bill  is  not  supple- 
mental, but  is  an  original  bill  seeking  to  vary  the  former  decree. 
Wilson  V.  Todd,  1  My.  &  C.  42. 

But  where  a  testator  directs  his  estate  to  be  converted,  and  invested 
for  certain  persons  for  life,  with  remainder  over,  and  the  executors,  in- 
stead of  converting,  permit  the  successive  tenants  for  life  to  enjoy  the 
leasehold  part  of  his  estate  until  the  expiration  of  the  terms  ;  and  the 
remaindermen  file  a  bill  against  the  representative  of  the  executors 
after  the  death  of  the  tenants  for  life  for  an  account  and  distribution  '■< 
but  in  consequence  of  representations  made  by  the  representatives  of 


S.  II.  p.  I.]  DEMURRERS.  245 

bill  of  review,  nor  a  bill  in  nature  of  review,  which 
are  the  only  kinds  of  bills  which  can  be  brought  to 
affect  or  alter  a  decree  (/),  unless  the  decree  has 
been  obtairted  by  fraud  (g).  So  if  a  supplemental  [207] 
bill  is  brought  against  a  person  not  a  party  to  the 
original  bill,  praying  that  he  may  answer  the  origi- 
nal bill,  and  no  reason  is  suggested  why  he  could 
not  be  made  a  party  to  the  original  bill  by  amend- 
ment, he  may  demur  (k).  If  an  irregularity  arises 
in  any  alteration  of  a  bill  by  way  of  amendment,  it 
may  also  be  taken  advantage  of  by  demurrer.  As 
if  a  plaintiff  amends  his  bill,  and  states  a  matter 
arisen  subsequent  to  the  filing  of  the  bill  (i),  which 
consequently  ought  to  be  the  subject  of  a  supple- 
mental bill,  or  bill  of  revivor.  But  if  a  matter  ari- 
sen subsequent  to  the  filing  of  the  bill,  and  properly 
the  subject  of  a  supplemental  bill,  is  stated  by 
amendment,  and  the  defendant  answers  the  amend- 

(/)  Arg'ioa  Atk.    811  ;    Read   v.     v.  Moleaworth,  1   Eden.  R.    25  ;  13 
Hambey,  1  Ca.  in  Cha.  44  ;  S.   C.  2     Ves,  564. 
Freein.  179  ;  13  Ves.  564.  (A)  Baldwin  v.  Mackown,  3  Atk. 

(g)  Argd»  3  Atk.  811  ;  Galley  v.     817. 
Baker,  Cdi.T.  Talb.  199  ;  Manaton         (t)  1    Atkyns,  291  ;   Filhington  v. 

Wignall,  2  Madd.  240  (1). 

the  executors  in  ignorance  of  the  circumstances,  the  remaindernien 
waive  an  account,  and  a  decree  is  made  for  distributing  the  residue  ; 
and  afterwards  the  remaindermen  discover  the  breach  of  trust  in  re- 
spect of  the  leaseholds,  and  file  a  supplemental  bill  for  relief,  the  court» 
notwithstanding  tiie  former  decree,  will  order  the  representatives  of 
the  executors  to  pay  what  was  the  value  of  the  lease  at  the  time  o^ 
the  testator's  death.  And  this  will  be  tlie  case,  even  though  the  title 
to  the  lease  was  bad,  if  no  advantage  was  taken  of  the  badness  of  the 
title  by  the  owners  of  tho  property.  Mehrlens  v.  Andrews,  3  Beav.  72. 
(1)  [There  is  the  form  of  a  demurrer  in  such  a  case  in  Equity 
Draft.  91,  (2d  edit.)  ;  and  a  note  added  wliereby  it  appears  that  the 
form  there  given  was  drawn  according  to  a  precedent  of  a  similar  de- 
m  urrer  made  out  by  Lord  Redesdale  when  at  the  bar.] 


245  DEMURRERS.  [ClIAP.  IL 

ed  bill,  it  is  too  late  to  object  to  the  irregularity  at 
the  hearing  (^).  For  as  the  practice  of  introduc- 
ing by  supplemental  bill  matter  arisen  subsequent 

246  to  the  institution  of  a  suit  has  been  established 
merely  to  preserve  order  in  the  pleadings,  the  rea- 
son on  which  it  is  founded  ceases  when  all  the 
proceedings  to  obtain  the  judgment  of  the  court 
have  been  had  without  any  inconvenience  arismg 
from  the  irregularity  (k). 

[208]  Having  thus  considered  the  several  grounds  of 
demurrer,  it  may  be  proper  to  observe  some  par- 
ticulars with  respect  to  the  frame  of  demurrers,  the 
manner  in  which  they  are  offered  to  the  court,  and 
the  manner  in  which  their  validity  may  be  deter- 
mined, or  their  consequences  avoided. 
connili'**"'^  °^  ^  demurrer  must  be  signed  by  counsel  (/)  ;  but 
Oath.  -g  p^^^  jj^  without  oath,  as  it  asserts  no  fact,  and  re- 

lies merely  upon  matter  apparent  upon  the  face  of 
der'for  ttoe°to  thc  bill  (m).     It  is  therefore  considered,  that  the  de- 
ovTi^S'g  ade°  fendant  may  by  advice  of  counsel,  upon  the  sight 
ewer  or  plea,     of  the  bill  ouly,  bc  cuablcd  to  demur  thereto  (n)  ; 
and  for  this  reason  it  is  always  made  the  speciaF 
condition  of  an  order  giving  the  defendant  time  to 
demur,  plead,  or  answer  to  the  plaintiff's  bill,  that 
he  shall  not  demur  alone.     Whenever,  therefore, 
the  defendant  has  obtained  an  order  for  time,  and 
*is  afterwards  advised  to  demur,  he  must  also  plead 
to  or  answer  some  part  of  the  bill  (p).     It  has  been 

(i)  Belchier    against    Pearson,  at  for  time  to  answer  generally,  it  would 

the  Rolls,  13  July,  1782.  be  presumed  that  his    case  does  not 

(k)  See  above,  p.  239.  require  the  usual  indulgence  to  the 

(Z)  See  Ord.  in  Cha.  172,  Ed.  Bea.  extent  mentioned  in  the  text;  and  the 

(m)  2  Ves.  247  ;   1  Madd.    R.  236.  order  would  be  drawn  up  accordingly, 

(w)  Ord  in  Cha.  172,  Ed.  Bea.  see  10  Ves.  448  :  1  Ves.  &.  B.  186  ; 

(0)  If  the  defendant  should  apply  and  he  would  be  bound  to  answer,  10 


S.  II.  p.  I.]  DEMURRERS.  247 

held,  that  answering  to  some  fact  immaterial  to  [209} 
the  cause,  and  denying  combination  (o),  do  not 
amount  to  a  compliance  with  the  terms  ot*  such  an 
order ;  and  therefore,  upon  motion,  a  demurrer  ac- 
companied by  such  an  answer  has  been  discharged 
{p).  This  rule  has  been  probably  established  un- 
der a  notion  that  time  is  not  necessary  to  determine 
whether  a  defendant  may  demur  to  a  bill  or  not, 
and  a  supposition  that  a  demurrer  may  be  filed 
merely  for  delay.  But  whether  a  bill  may  be  de- 
murred to  is  sometimes  a  subject  of  serious  and 
anxious  consideration  :  and  the  preparation  of  a 
demurrer  may  require  great  attention^  as  if  it  ex- 
tends in  any  point  too  far  it  must  be  overruled. 
Great  inconvenience  therefore  may  arise  from  a 
strict  adherence  to  this  rule.     For  it  often  happens 

Ves.  44G  ;  but  a  plea  would  be  con-  Allen,  1  Madd.  R.  556  ;  Sherwood  v. 

sidered  within  the    meaning  of   this  Clark,  9  Pri.  Ex.  R.  259  (1). 

term.    See  Roberts  v.  Hartley,  1  Bro.  (o)  As  to  the  necessity  of  denying 

C.  C.  56  ;    De  Minkuitz  v.   Udney,  a  general  charge  of  combination,  see 

16  Ves.  355  ;  Barber  v.  Crawahaw,  supra,  p.  44.     The  charge  of  combi- 

6  Madd.  284,  unless,  perhaps,  it  were  nation,  in  order  to  be  material,  with 

of  a  description  not  required  to  be  put  the  view  of    preventing  a  demurrer 

in  upon  oath,  see  Phillips  v.  Gibbons,  for  want  of  equity  by  parties  not  inter- 

2  Ves.  &B.  184  ;  and  see  Anon,  2.  P.  ested,  must  be    specific.      Smith   v- 

Wms.  464  ;  3  P.  Wms.  81  ;  but  the  Snow,  3  Madd.  10. 

defendant  would  not    be    allowed  to  (p)  Stephenton  v.  Gardiner,  2  P. 

demur  alone.    Kenrick  v  .  Clayton,'^  Wms.  286  ;  4  Viu.  Abr.  442  ;  Lee  v. 

Bro.  C.  C.  214;  «.  C.  Dick.  685  ;  or  Pascoe,  1    Bro.  C.    C.  78  ;  and  see 

even  to  answer  and  demur.  Taylor  v.  Kenrick  v.  Clayton,  2  Bro.  C.  C.  214; . 

Milner,  10  Ves.  444  ;  Mann  v.  King,  S.  C.  Dick.  685  ;  Lansdown  v.  Elder- 

18  Ves.  297,  except  under  peculiar  ton,  8  Ves.  526;   Tompkin  v.  Letli- 

circumstances,  and  upon  leave  grant-  bridge,  9  Ves.  178  ;  10  Ves.  446,  447, 

ed  by  the  court,  on  a  special  applica-  448  ;  2  Ves.  &  B.  123. 
tion    for  that  purpose.    See  Bruce  v. 

(1)  [By  the  New- York  practice,  after  a  general  order  for  further 
time  to  answer,  (under  tl)e  rJ5tii  rule,)  the  defendant  cutinot  put  in  a 
demurrer, except  on  special  leave  of  the  court.  Burrall  v.  Raineleatix, 
2  Paige's  C.  R.  331.] 


248  DEMURRERS.  [ChAP.  11. 

that  a  defendant  cannot  answer  any  material  part 
of  the  bill  without  overruling  his  demurrer  ;  it  being 
held  that  if  a  defendant  answers  to  any  part  of  a 
bill  to  which  he  has  demurred,  he  waives  the  benefit 
of  the  demurrer  {q)  (1) ;  or  if  he  pleads  to  any  part 
[210]  of  a  bill  before  demurred  to,  the  plea  will  overrule 
the  demurrer  (r).  For  the  plaintiff  may  reply  to  a 
plea  or  answer,  and  thereupon  examine  witnesses, 
and  hear  the  cause ;  but  the  proper  conclusion  of  a 
demurrer  is  to  demand  the  judgment  of  the  court 
whether  the  defendant  ought  to  answer  to  so  much 
of  the  bill  as  the  demurrer  extends  to,  or  not  (s). 
The  condition,  that  the  defendant  shall  not  demur 
alone,  ought  therefore,  perhaps,  to  be  considered 
hberally;  and  it  has  been  formerly  said,  that  the 
court  will  not  incline  to  discharge  a  demurrer  if  the 
defendant  denies  combination  only  where  he  can- 
not answer  further  without  overruling  his  demur- 

(g)  See  Hester  v.  Weston,  1  Ves.         (r)  Dormer  v.  Fortescue,  2   Atk. 

463 ;  Jones  v.  Earl  of  Strafford,  3  282. 
P.  Wms.  79 ;  Abraham  v.  Dodgson,         {»)  3  P.  Wms.  80. 
2  Atk.  157. 

(1)  Where  answer  covers  part  of  the  discovery  to  which  demurrer 
is  interposed,  it  overrules  the  demurrer.  As  where  the  answer  set  up 
a  defence  as  purchai^er  without  notice,  and  which;  if  true,  would  be  a 
defence  to  the  equitable  right  claimed,  under  a  will ;  and  its  concluding 
allegation  denied  all  knowledge  as  to  any  of  the  matters  of  the  bill 
other  than  those  which  defendant  had  answered  :  and  closed  with  the 
general  traverse  of  the  answer  ;  and  thereby  put  in  issue  and  answered 
all  the  matters  attempted  to  be  covered  by  the  demurrer  ;  held,  that 
the  demurrer  which  was  to  all  the  discovery  and  relief  sought  in  rela- 
tion to  the  will,  was  overruled  by  such  pan  of  the  answer.  Spofford 
et  al  V.  Manning,  6  Paige's  R.  387,  388.  383.  By  the  37th  order  of 
August,  1841, "no  demurrer  or  plea  shall  be  held  bad  and  overruled 
upon  argument  because  the  answer  of  the  defendant  may  extend  to 
some  part  of  the  same  matter  as  may  be  covered  by  sucli  demurrer  or 
plea." 


S.  II.  p.  I.]  DEMURRERS. 


248 


rer  (s).  Indeed  any  material  answer  must  in  many 
cases  overrule  the  demurrer  ;  so  that  giving  a  de- 
fendant time  to  demur,  plead,  or  answer,  not  demur- 
ring alone,  is  oftenin  effect  giving  leave  todoathing, 
but  clogging  the  permission  with  a  condition  which 
makes  it  nugatory  :  and  though  the  rule  was  first 
adopted  upon  a  reasonable  ground  to  prevent  un-  249 

necessary  delay,  it  may,  if  strictly  observed,  con- 
tradict the  maxim,  that  a  court  of  equity  ought  not, 
for  form  sake,  to  do  a  great  injustice  (t).  However 
the  modern  practice  is  according  to  the  original 
strictness  of  the  rule  (u)  ;  and  it  may  be  better, 
where  the  case  requires  it,  to  relax  the  rule  upon 
special  application  to  the  court  (x)  than  to  permit  [211] 
it  to  be  evaded  (i/).  Indeed  in  some  cases  an  an- 
swer to  any  part  of  the  bill  may  overrule  the  de- 
murrer ;  for  if  the  ground  of  demurrer  applies  to  the 
whole  bill,  the  answering  to  any  part  is  inconsis- 
tent (z)  ;  and  therefore,  when  the  ground  of  demur- 
rer was  the  general  impropriety  of  the  bill,  and  that 
the  defendant  ought  not  therefore  to  be  compelled 
to  answer  it,  his  answer  to  an  immaterial  part,  in 
compliance  with  the  order  for  time  which  he  had 
obtained,  overruled  his  demurrer  (a). 

(»"»  See   Done  v.  Peacock,  3  Atk.  the   court  will  do.     See  above,  p.  246, 

726 ;  see  above,  p.  209,  note  (6).  note  (o). 

(0  1  Ves.  247.  (y)  It    eeeme    that  very    httle  by 

(u)  Attorney  Gen.  v.  Jenner,  in  way  of  answer  will  satisfy  the  terms 
Ch.  9  Nov.  1738;  Sir  John  Dyne-  of  the  order;  but  that  the  court  con- 
fey  Goodere  v.  Dean  and  Chap-  eiders  the  |>ractice  in  this  respect  to  be 
ter  of  Worcester,  in  Exchequer,  1777.  guarded  by  the  honor  of  the  counsel. 
Lee  V.  Pascoe,  in  Chan.  East.  See  Tompkin  v.  Lethbridge,  9  Ves. 
1780 ;  1  Bro.  C.  C  77  ;  8  Ves  527;  178  ;  11  Ves.  73. 
10  Voa.  447.  See  above,  pp.  246,  247,  (z)  Tidd  v.  Clare,  Dick.  712. 
and  notes  (o),  {p),  and  (9).  (a)   Ruspini  v.  Vickery,  iu  Chan. 

(z)  And  this  upon  a  special  ground,  16  Jan.  1793. 


249  DEMURRERS.  [ChAP.  II. 

dem^^rcrofthe      ^^  a  deiTiurrer  relies  merely  upon  matter  appa- 

statemenu  of    Teiit  oo  the  face  of  the  bill,  so  much  of  the  bill  as 

the  demurrer  extends  to  is  taken  for  true  (b)  (1)  ; 

250  thus  if  a  demurrer  is  to  the  whole  bill,  the  whole 
(c)  is  taken  for  true  ;  if  it  is  to  any  particular  dis- 

(6)  2  Ves.  &  Bea.  95  ;    1  Madd.  that  is,  facte  which  are  well  and  ma- 

R.  565.     [Pryor  v.  Adams,  Call's  R.  terially  alleged.     Lord  Hardwicke  in 

39].]  Butler  v.  Royal   Exchange  Ass^ur- 

(c)  That  is,  every  thing  necessary  ance,  in  Chan.  22  Nov.  1749  ;  1  Vea. 

to  support  the  plaintiff's  case  which  Jun.  78,  289  ;  3  Meriv.  503  ;  1  Madd. 

.is  well  charged  in  the  bill.     1   Ves.  565.     [Braband  v.  HoskinSy3  Price, 

426,427;    1   Ves.  Jun.  289.     Facts  31.] 
on  a  demurrer  are  taken  to  be  true ; 


Asagainetwhom       (1)  A  party  demurrinff  admits  the  truth  of  the  allesratioiis  in  the 

allegationa   are     ,.,,  "^  ...         ,.,  ,  .  , 

admitted  by  a  Dill  not  only  as  against  hims^elf  but  alfo  as  against  another  person, 
emurrer.  •  g^  ^^j^^^^  jj-  ^  |^jjj  alleges  that  a  person  has  ceased  to  have  interest,  a 
party  demurring  admits  that  fact,  and  cannot  object  to  the  suit  on  ac- 
count of  such  person  not  having  been  made  a  party  to  the  record. 
Earle  v.  Halt,  9  Jur.  773,  V.  C.  W.  But  see  Penfold  v.  Nunn.  6  Sim. 
405.  ^ 

Demurrer  as-  Where  a  bill  states  the  purport  of  a  deed  in  the  possession  of  the 

eumes   correct-  r      r  r 

ness  of  a  state-  defendant,  the  court,  upon  deinurrer,  must  assume  such  statement  to  be 
port  of  a  deed.  Correct ;  so  that  the  demurring  party  is  not  at  liberty  to  read  the  deed 
itself,  for  the  purpose  of  disproving  such  statement,  even  though  the 
bill,  for  greater  certainty,  refers  to  the  deed.  For,  to  ho'd  otherwise, 
would  be  to  give  the  defendant  an  advantage  depending  upon  the  acci- 
dent of  his  having  the  custody  of  the  deed,  and  might  in  effect  be  to 
decide  the  question  raised  by  the  demurrer  upon  matter  dehors  the 
record.     Camphell  v.  Mackay,  1  My.  &  C.  613. 

Demurrer  only        Where  a  defendant  demurs  to  a  bill  for  want  of  equity,  he  is  not  to 
admits  for  the 


purpose  of  the  be  taken  to  have  confessed   the  truth  of  the  statements  and  charges. 

argument  jj^  ^^^j^  admits  them   for  the  purpose  of  showing  the  want  of  equity 

even  upon  the  assumption  that  the  statements  and  charges  in  the  bill 
are  true.  All  that  he  says  by  a  demurrer  is  this  :  "even  admitting 
(just  for  the  sake  of  arguing  upon  your  own  (^rounds,  as  to  the  exist- 
ence of  the  equity  which  you  assert)  that  all  you  say  is  true,  still  you 
have  no  equity.  Without  putting  myself  to  the  trouble,  expense,  and 
delay  of  disproving  your  allegations,  but  taking  you  on  your  own 
grounds,  I  can  show  that  you  have  no  equity  against  me."  See  the 
Lord  Chancellor's  remarks  in  Thompson  v.  Barclay,  9  Law  J.  (Q.  S.) 
216,217. 


made  by  demur- 
rer. 


S.   II.  p.  I.]  DEMURRERS.  250 

covery,  the  matter  sought  to  be  discovered,  and  to 

which  the    demurrer   extends,  is  taken  to  be  as  251 

stated  in  the  bill  ;  and  if  the  defendant  demurs  to 

relief  only,  the   whole   case  made  by  the  bill  to 

ground  the  relief  prayed  is  considered  as  true.     A 

demurrer  is  therefore  always  preceded  by  a  pro-     [212] 

testation  against  the  truth  of  the  matters  contained 

in  the  bill ;  a  practice  borrowed  from  the  common 

law,  and  probably  intended  to  avoid  conclusion  in 

another  suit. 

The  admission  by  a  demurrer  of  the  truth  of  the    ^vhetherade- 

•'  fence   founded 

facts  stated  in  the  bill  has  been  considered  as  one  timi^wn^f 
reason  why  a  defence  founded  on  length  of  time, 
though  apparent  on  the  face  of  the  bill,  without  any 
circumstance  stated  to  avoid  its  effect,  cannot  gene- 
rally be  made  by  demurrer  (r)  (1).  Upon  a  de- 
murrer to  a  bill  brought  to  impeach  transactions 
which  had  passed  twenty-eight  years  before  the 
bill  was  filed,  on  the  ground  of  fraud,  without  any 
sufficient  cause  shown  for  not  instituting  the  suit 
sooner,  it  was  said  by  the  court  that  the  party  who 

(c)   But,  if  the   plaintiff's   case  be  by    the     mortgagee    of    more    than 

80  stated  iu  the  bill  as  to  show  that  twenty  years,  (see  Aggas  v.  Picker- 

his  claim  is  barred  by  lapse  of  time,  ell,  3  Atk.  225 ;  and  see  2  Ves.  Jun. 

and  no  ground  of  exception,  as  infan-  84,)  the  defendant  may  demur.   Beck- 

cy,  or  the  like,  be  alleged  therein,  it  ford  v.  Close,  cited  3  Bro.  C.  C.  644  ; 

seems  that,  contrary  to  the  opinion  of  4  Ves.  476,  ib.  479  ;  Foster  v.  Hodg- 

Lord  Hardwicke,  expressed  in  a  case  son,  19  Ves.   180.     [See  2  Revised 

in  which  the  suit  was  for  redemption  Statutes  N.  Y.  301.] 
of  a  mortgage,  after  quiet  possession 

(1)  A  defendant  may  avail  himself  of  the  statute  of  limitations  by 
demurrer,  when  the  application  of  the  statute  to  the  suit  appears  on 
the  face  of  the  bill.  Hoire  v.  Peck,  6  Sim.  51.  3  Bro.  C.  C.  Iv.  Per- 
kins Ed.  ,6:53.  6-16,  notes;  Fre.ike  v.  Cran/dd/,Z  My.  &.  Cr.  499; 
Tyson  V.  Pole,3  Vounge  &  Col.  266  ;  McDnwl  v.  Charles, Gi.  C. 
R.  132  ;  Coslar  v.  Murray,  5  J.  C.  R.  52 1  ;  Ilianb  rl  v.  Rector,  tj-c. 
Trinity  Church,!  Paige  C.  R.  196;  Van  Hook  v.  \Vhitl(:ck,1  I'aige 
C.  R.  373  ;  S.  C.  24  Wend.  R.  687  ;   Waller  v.  Deminl,  1  Dana,  92. 


251  DEMURRERS.  [ChAP.  II. 

demurs  admits  every  thing  well  pleaded,  in  manner 
and  form  as  pleaded  ;  and  a  demurrer  ought  there- 
fore in  a  court  of  law  to  bring  before  the  court  a  ques- 

252  tion  of  law  merely;  and  in  a  court  of  equity,  a  question 
of  law  or  equity  merely.  The  demurrer  therefore 
mustbe  taken  to  admit  the  whole  caseof  fraud  made 
by  the  bill;  and  the  argument  to  support  it  mustbe, 
not  that  a  positive  limitation  of  time  has  barred  the 
suit,  for  that  would  be  a  pure  question  of  law,butthat 

[213]     from  long  acquiescence  it  should  be  presumed  that 
,  the  fraud  charged  did  not  exist,  or  that  it  should 

be  intended  that  the  plaintiff  had  confirmed  the 
transaction,  or  had  released  or  submitted  upon 
such  consideration  as  to  bar  himself  from  the 
general  equity  stated  in  the  bill.  This  mustbe  an 
inference  of  fact,  and  not  an  inference  of  law ;  and 
the  demurrer  must  be  overruled,  because  the  de- 
fendant has  no  right  to  avail  himself  by  demurrer 
of  an  inference  of  fact  upon  matter  on  which  a  jury 
in  a  court  of  law  would  collect  matter  of  fact  to  de- 
cide their  verdict,  if  submitted  to  them,  or  a  court 
would  proceed  in  the  same  manner  in  equity.  What 
limitation  of  time  will  bar  a  suit  where  there  is  no 
positive  limitation,  or  under  what  circumstances  the 
lapse  of  time  ought  to  have  that  effect,  must  depend 
on  the  fficts  of  the  particular  case,  and  the  conclu- 
sion must  be  an  inference  of  fact  and  not  an  infer- 
ence of  law(c?),  and  therefore  cannot  be  made  on  a 
demurrrer  (e). 

(</)  See    Cuthbert    v.    Creasy,    6  v.  Beckford,  on  appeal  from  Jamaica 

Madd.  189.  26  July,  1784,  a  demurrer  to  a  bill  to 

(e)   Ld.  Deloraine   v.  Browne,  in  redeem  on  account  of  length  of  time 

Chan.  13  &.  14  June,  1792  ;  3  Bro.  was  allowed  by  the  council — present 

C.  C.  633.     But  see  p.  241,  as  to  de-  Kenyan,  M.  R. — after  consideration, 
murrers  to  bills  of  review.     In  Tobin 


S.  II.  p.  I.]  DEMURRERS.  253 

A  demurrer  must  express  the  several  causes  (/)  thecE'ofd^ 

/»!  /      \      /■-!  \  3      •  ill  murrer,  and  the 

of  demurrer  (£')   (1);   and   m   case   the  demurrer  pans  to  wwch 

^oy     \    ^  ^  ij  applies. 

doe  snot  go  to  the  whole  bill,  it  must  clearly  express     [214] 
the  particular  parts  of  the  bill  demurred  to  (h).     If  J.f^lf  ^^H" 
a  demurrer  is  general  to  the  whole  bill,  and  there  °"'"'®'' 
is  any  part,  either  as  to  the  relief  or  the  discovery, 
to  which  the  defendant  ought  to  put  in  an  answer, 
it   was    generally  considered    that   the    demurrer 
being  entire  must  be  overruled  (i)  (2).     But  there 

(/)  See   3    Madd.  8 ;    1    Jac.  R.  the  bill,  but  by  positivo  definition  of 

467;   and  see   Harrison  v.  Hogg,  2  the   parts  to  which  he  thereby  seeks 

Ves.  Jun.  323.  to  avoid  answering.     See    Robinson 

(g)  Peachie    v.    Twycrosse,  Cary  v.    Thowpson,  2  Ves.   &-  Bea.  118; 

Rep.  113;   Ord.  in  Ciian.  Ed.  Be.a.  77,  Wcalherhead  v.  Blackburn,  2  Ves. 

173.  &  Bea.  121;   sed  vide  Hicks  v.  Rain- 

(A)   Cketwynd   v.  Lindon,  2  Ves.  cock,  1  Cox  R.  40. 

451;  Devonsherv.  Newenham,  2  Sch.  (i)   1  Ves.  248  ;  Earl  of  Suffolk  v. 

&  Lefr.  199.     And  this  must  be  done,  Green,  1  Atk.  450  ;   Todd  v.  Gee,  17 

not  by  way  of  exception,  as  by  de-  Ves.  273;  1  Swanst.  304;  1  Jac.  R* 

murring  to  all. except  certain  parts  of  -        _ 

(1)  [Nash  V.  Smith,6  Day's  R  421  ;  6th  Rule  of  South  Carolina 
Prac.  1  Desseau,  57.  It  must  not  be  a  speaking  demurrer.  A  speak- 
ing demurrer  is,  wii^re  a  fact  is  iiitri)duced  which  is  necessary  to  sup- 
port the  demurrer.  Davis  v.  Williams,  1  Sim.  7.  It  is  a  general  rule, 
that  a  speaking  demurrer  is  bad  ;  i.  e.  when  it  contains  argument  in 
the  body  of  it;  if,  for  instance,  the  demurrer  says,  "in  or  about  the 
year  1110,  which  is  upwirds  of  twenty  years  before  the  bill  filed.'''  (2 
Ves.  Jr.  83.)  A  demurrer,  aK-so,  to  any  thing  but  what  appears  on  the 
face  of  the  bill,  is  considered  as  a  speaking  demurrer.  (2  Ves.  245.) 
Lube,  340.  And  as  to  other  cases  upon  speaking  demurrers,  see  Caw- 
thorn  V.  Charlie,  2  Sim.  &  Stu   129  ;  Duiis  v.  Williams,  1  Sim.  8.] 

A  speaking  demurrer  is  one  which  introduces  some  new  fact  or 
averment,  which  is  necessary  to  support  the  demurrer,  and  which  does 
not  appear  distim ily  upon  the  face  of  the  bill.  Where  defendant  put  in 
a  general  demurrer  to  the  bill,  and  st^ited  as  grounds  of  demurrer, 
several  matters  appearing  on  the  fac,"  of  the  bill,  an  objection  that  it 
was  a  speaking  demurrer,  was  held  in)t  well  taken.  Brooks  v.  Gib- 
bons el  al.,  4  Paige  R.  375,  374.     See  also  Kui/pers  v.  Reformed  Dutch 

Church,  6  Paige  670  ;   Pendi  bury  v.   Walker,  4  Younge  &-  Coll.  434  ; 

McComh  V.  Arinslrang,  2  .Mulloy's  Ch.  R.  ^ Irish,)  295. 

(2)  Demurrer  bad  in  part  is  bad  in  Into.  5  Johns.  C.  R.  186  ;  1  Id.  51. 
Contra,  2  Bibb,  48-1.)    Where  liie  bill  is  charged  a  "  fraudulent  conceal- 


25S  DEMURRERS.  [ChAP.  II. 

are  instances  {K)  of  allowing  a  demurrer  in  part  (/) ; 

and  a  defendant  may  put  in  separate  demurrers 

254  to  separate  and  distinct  parts  of  a  bill  for  separate 

467  (1).    But  though  a  demurrer  can-  2  Bro.  P.  C.  5l4,  Toml.  Ed. 
not  be  good  in  part  and  bad  in  part         (/)  Although  this  is  not  now  the 

(8  Ves.  403;  11  Ves.    70;    17  Ves.  practice,  tlie  court  will  in  some  in- 

280),  (2)  it  appears  that  where  such  stances,  on  the  argument  of  ademur- 

a  mode  of  defence  has  been  resorted  rer,  grant  leave,  upon  overruling  it, 

to  by  Several    defendants  jointly,  it  to  the  defendant  to  put  in  another  less 

it  may  be  good  as  to  some  of  them,  extended.     {Thorpe  v.  Miicauley ,  5 

and  bad  as  to  the  others ;  see  8  Ves.  Madd.  218)>  and  will,  even  after  it 

403,  404.  has  been  overruled,  sometimes  be  in- 

(Je)  Rolt  V.  Lord  Soinenrille,  2  "Eq.  duced  to  grant  a  similar  indulgence. 

Ca.  Ab.  759  ;  RadcUffe  v.  Fursman,  Baker  v.  Mellish,  1 1  Ves.  68.  (3) 


ment  of  title,  while  complainant  Was  making  improvements,"  a  general 
demurrer  to  the  whole  bill  to  such  a  charge  of  fraud  is  bad.  The 
charge  of  fraud  direst  and  positive,  must  be  met  otherwise  than  by  a 
demurrer.  Carter  v.  Longworth,  el  al.,  4  Ohio  R.  836,  condensed  from 
4  Hammond,  384;  see  also  Higgins  v.  Burnet,  5  Johns.  C.  R.  184. 

Held,  on  a  joint  demurrer  of  husband  and  wife,  that  it  may  be  sus- 
tained in  her  favor  and  overruled  as  against  her  husband.  As  on  bill 
for  specific  performance  of  contract  for  sale  of  her  realty,  demurred  to 
by  them  on  the  ground  that  her  acknowledgment  on  private  examina- 
tion was  not  taken.  Demurrer  was  held  well  taken  by  her  but  as 
there  was  an  equitable  claim  against  husband  for  the  fulfilment  of  the 
contract  and  therefore  he  should  answer,  the  demurrer  was  oven  uled 
as  to  him.  Wooden  et  al.,  v.  Morris  <^  Wife,  2  Green,  C.  R.  (N.  J.) 
67.  66. 

(1)  {And  see  Verplanck  v.  Caines,!  J.  C.  R.  67;  Le  Roy  v.  Vee- 
der,  on  appeal,  1  J.  C.  417  ;  Laight  v.  Morgan,  on  appeal,  1  J.  C.  429 ; 
S.  C.  2  C.  C.  E.  344  ;  Kimberly  v.  Sells,  3  J.  C.  R.  497  ;  Livingston 
V.  Livingston,  4  lb.  294;  Le  Roy  v.  Seriis,  1  C.  C.  E.  1  ;  Higginbo- 
tham  V.  Barnel,  6  lb.  184  ;  Briam  v.  Briam,  Vernon  &  JScriven's 
(Irish)  R.  84  ;  Graves  v.  Downey,  3  MoniH)e's  R.  125  :  Caslleman  v. 
Veitch,  3  Randolph's  R.  598  ;  Cheetham  v.  Crook,  1  M'Cleland  &  Y. 
307.] 

(2)  [But  see  Verplanck  v.  Caines,  supra.  It  has  been  said,  in  Ken- 
tucky, that  a  demurrer  to  a  bill  may  be  overruled  in  part  and  sustained 
in  part.     Pope  v.  Stanslmry,  2  Bibb,  484.] 

(6)  [This  is  not  allowed  in  the  New-York  chancery.  49th  Rule. 
See  Rawley  v.  Eccles,  1  Sim.  &  Stu.  611.] 


S.  II.  p.  I.]  DEMURRERS.  254 

and  distinct  causes  (?ti).     For  the  same  ground  of 
demurrer  frequently  will  not  apply  to  different  parts 
of  a  bill,  though  the  whole  may  be  liable  to  de- 
murrer ;  and  in  this  case  one  demurrer  may  be  over-     [215] 
ruled  upon  argument,  and  another  allowed  (w)  (1). 

If  the  plaintiff  conceives  that  there  is  not  suffi-  ll^Hf^^^^^F' 
cient  cause  apparent  on  the  bill  to  support  a  demur-  Ser!°'  ^^^' 
rer  put  in  to  it,  or  that  the  demurrer  is  too  exten- 
sive, or  othenvise  improper,  he  may  take  the  judg- 
ment of  the  court  upon  it  (2) ;  and  if  he  conceives  that 
by  amending  his  bill  he  can  remove  the  ground  of 
demurrer,  he  may  do  so  before  the  demurrer  is 
argued,  on  payment  of  costs,  which  vary  according 
to  the  state  of  the  proceedings  {o).     But  after  a 
de  murrer  to  the  whole  of  a  bill  has  been  argued 
and  allowed,  the  bill  is  out  of  court,  and  therefore 
cannot  be  regularly  amended  (^?).     To  avoid  this 

(m)  3  P.  Wms.  149  ;  Roherdeau  v.  Cane.  565  ;  1  Harrison,  Chan.  Pract. 

Rous,  1  Atk.  544.  ^  39. 

(n)  North  V.  Earl  and  Countess  of        (p)  See  above,  p.  15,note  (0;i'Or<f 

Strafford,  3  P.  Wms.  148  (1).  Coningsby  v.  Sir  Jos.  Jekyll,  2  P.  W. 

(o)  Anon.  Mosely,  301 ;  1  Ves.  Jun.  300,  and  note,  and  Watkins  v.  Bush, 

448 ;  Anon.  9  Ves.  221 ;  1  Aim.  Cur.  Dick,  701.  (3) 


(1)  [Same  principle  recognised  in  Little  v.  Archer,  1  Hogan,  55.] 

(2)  [Where  the  defendant  files  a  faulty  and  informal  demurrer  to 
a  bill  in  chancery,  the  complainant  is  not  entitled  to  have  it  dismissed, 
but  must  set  it  down  for  argument.  Hurst  v.  Hurst,  C.  C.  U.  S.  Penn. 
Apr.  1806.  MS.  Coxe's  Dig.  p.  145. 

There  should  be  no  joinder  in  demurrer.  The  cause  is  to  be  set  down 
for  argument  of  the  demurrer.  Beauchamp  v.  Gibhs,  1  Bibb'd  (Ken- 
tucky) R.  481.  By  the  practice  of  the  State  of  New- York,  either 
party  may  notice  a  demurrer  for  argument.     47tli  Rule. 

On  the  argument,  the  complainant  is  bound  by  the  case  stated  in  the 
bill  in  relation  to  the  discovery  sought,  and  will  not  be  allowed  to 
maintain  his  right  to  discovery  upon  a  suggestion  ore  tenus  at  the  bar 
not  consistent  with  the  case  made  in  the  bill.     Little  v.  Archer,  sujira.] 

(3)  [Also  Lyon  v.  TallmaJge,  1  J.  C.  R.  184.] 

22 


254  *  DEMURRERS.  [ClIAP.  IL 

consequence  the  court  has  sometimes,  instead  of 
deciding  upon  the  demurrer,  given  the  plaintiff 
Uberty  to  amend  his  bill,  paying  the  costs  incurred 
by  the  defendant;  and  this  has  been  frequently  done 
in  the  case  of  a  demurrer  for  want  of  parties  ((/). 

255  Where  a  demurrer  leaves  any  part  of  a  bill  un- 
touched, the  whole  may  be  amended  notwithstand- 
ing the  allowance  of  the  demurrer ;  for  the  suit  in 

[216]  that  case  continues  in  court,  tlie  want  of  which 
circumstance  seems  to  be  the  reason  of  the  con- 
trary practice  where  a  demurrer  to  the  whole  of  a 
bill  has  been  allowed.  A  demurrer  being  frequent- 
ly on  matter  of  form  is  not  in  general  a  bar  to  a 
new  bill ;  but  if  the  court  upon  a  demurrer  has 
clearly  decided  upon  the  merits  of  the  question 
between  the  parties,  the  decision  may  be  pleaded 
in  bar  of  another  suit  (r). 
^eeeuiiyfoT  a  \  dcmurrcr  being  always  upon  matter  apparent 
upon  the  face  of  the  bill,  and  not  upon  any  matter 
alleged  by  the   defendant,  it  sometimes   happens 

(q)  And  the  court  upon  allowing  a  duced,  under  some  circumstances,  to 

demurrer,  will    sometimes    give  the  set  the  Ciiuse  ou  foot  again,  and  to 

plaintiff  leave  to  amend ;  see  Mayor,  authorize  an  amendment  to  the  bill. 

^c.  of  London  v.  Levy,  8  Yes.  398 ;  See  11  Ves.  72  (1). 

Edwards  v.  Edwards,  6  Madd.  255  ;  (r;  See  the  cases  upon  demurrers 

and  it  seems  probable  that,  even  after  to  blls  of  review  cited  above,  p.  242, 

allowance,  the    court  might   be   in-  note  (a). 

(1)  [Also  Marshall  v.  Lovelass,  Cameron  &  Norwood's  { North  Caro- 
lina) R.  239,  264  ;  Brouthin  v.  Lovelass,  lb.  520  ;  Rose  v.  K'm.^,  4  Hen. 
&  Munf.  157;  Lyon  v.  Tallmadge,  supra;  MilUgan  v.  MilUdge,  S 
Cranch,  220.  It  eeems,  that  in  Kentucky  a  bill  will  be  dismissed  for 
want  of  parties  ;  although  it  will  be  done  without  prejudice.  Barry  v. 
Rrgers,  3  Bibb,  314;  Foster  v.  Hunt,  lb.  33  ;  Caldwell  v.  Hawkins,  1 
Litt.  214.  If  a  demurrer  is  overruled,  the  complainant  may,  within  ten 
days  ihereaf  er,  amend  his  bill  of  course  and  without  costs.  43  Rule 
N.  Y.  Chancery.] 


S.  II.  p.  I.]  DEMURRERS.  255 

that  a  bill,  which,  if  all  the  parts  of  the  case  were 
disclosed,  would  be  open  to  a  demurrer,  is  so  art- 
fully drawn  as  to  avoid  showing  upon  the  face  of  it 
any  cause  of  demurrer.  In  this  case  the  defendant 
is  compelled  to  resort  to  a  plea,  by  which  he  may 
allege  matter  which,  if  it  appeared  on  the  face  of  the 
bill,  would  be  good  cause  of  demurrer.  For  in 
many  cases  what  is  a  good  defence  by  way  of  plea 
is  also  good  as  a  demurrer,  if  the  facts  appear  suffi- 
ciently by  the  bill  (s).  And  if  a  demurrer  should  rieaafterade- 
be  overruled  on  argument  because  the  facts  do  not 
sufficiently  appear  on  the  face  of  the  bill,  defence 
may  be  made  by  plea,  stating  the  facts  necessary  to 
bring  the  case  truly  before  the  court,  though  it  has 
been  said  that  the  court  would  not  permit  two  dila-  256 

tories  (^).     And  after  a  plea  overruled,  it  is  said     [217] 
that  a  demurrer  was  allowed,  brinofincp  before  the  apiea. 
court  the  same  question  in  substance  as  was  agitated 
in  arguing  the  plea  (m).     But  after  a  demurrer  has  ^second  demnr- 
been  overruled,  a  second  demurrer  will  not  be  al- 
lowed {x)  ;  for  it  would  be  in  effect  to  rehear  the 

(s)  See   Hetley,  139.     But  see  3  491,492. 
Atk.  22G.  'x)  .«ee  2  Bro.  C.  C.  66  ;  and  see 

(t)  Hudson   V.  Hudson,  in  Chdu.  above,p.  253,  note  (O-     Where,  how- 

23  April,  1734.     Reported   1  Sim.  &  ever,  a  demurrer  was  informal  in  its 

Stu.  512,  note;  Rowley  v.  Eccles,  1  frame,  but  good  in  Pukstance,  it  was 

Sim.  &.  Stu.  511.  overruled,  with  liberty  to  the  defen- 

(«)   E.  India  Company  v.  Camp-  dant  to  file  another,  iiee  Devonsherv. 

bell,  I    Ves.    246.     But    it   may   be  iVe«i(?;(/(a7/»,2  Sch.  &,  Lefr.  199.  And, 

doubted  whether  this   case  has    not  inconsequenceof  the  modern  doctrine, 

been  mistaken  by  the  reporter,  and  that  a  defendant  who  submits  to  an- 

whether  the  question  was  not  on  ex-  swermust  in  general  answer  fully  (1), 

ceptions  to  an    answer.     See  2  Ves.  see  below,  ch.  2,  sect.  2,  part  3  [page 

(1)  By  the  38ih  order  of  August,  1841,  "  a  defendant  shall  be  at 
liberty  by  answer  to  decline  answering  any  interrogatory  or  part  of  an 
interrogatory,  from  answering  which  he  might  have  protected  himself 


rer. 


256  PLEAS.  [Chap.  II. 

case  on  the  first  demurrer  ;  as  on  argument  of  a 
demurrer  any  cause  of  demurrer,  though  not  shown 
in  the  demurreras  filed,  may  be  alleged  at  the  bar, 
and  if  good  will  support  the  demurrer  {y). 


257  CHAPTER  II. 

[218] 

Section  II. — Part  II. 

Of  Pleas. 

S?of  piea^^*'  I^  treating  of  pleas  the  same  order  may  be  conve- 
niently pursued  as  has  been  already  used  in  treat- 
ing of  demurrers.  Pleas  to  original  bills  will  there- 
fore be  first  considered,  and  under  that  head  the 
nature  of  pleas  in  general,  and  the  principal  grounds 

306],  this    court  in  some    instances,  (y)   As  to  demurrers  ore  tenus,  see 

onoverruiinga  demurrer  to  discovery,  Pyle  v.  Price,  6  Ves.   779;  8  Ves. 

instead  of  giving  the    defendant  lib-  408 ;     Dummer    v.    Corporation    of 

erty  to  insist  by  answer  that  he  is  not  Chippenham,  14  Ves.  245;  17  Ves. 

bound  to  make  the  disclosure  required,  216;   Att.   Gen.  v.  Moses,  2   Madd. 

will  give  him  liberty  to  file  another  294 ;  1  Swanst.  288  ;  Knye  v.  Moore, 

less  extensive.     See    Thorpe  v.  Ma-  1  Sim.  &  Stu.  61 ;  Hook  v.  Dorman, 

cauley,  5  Madd.  218.  1  Sim.  &  Stu.  227  (2). 

by  demurrer ;  and  that  he  shall  be  at  liberty  so  to  decline,  notwith- 
standing he  shall  answer  other  parts  of  the  bill  from  which  he  might 
have  protected  himself  by  demurrer." 

(2)   Garlick  v.  Strong,  ?  Paige's  C.  R.  440. 

Under  a  general  demurrer  for  want  of  equity,  a  demurrer  o'-e  tenus 
may  be  n.ade  for  want  of  parties.  Stillwell  v.  McNeelsy,  1  Green's 
C  R.  305;  2  Mylne  &  Craig.  145.  A  demurrer  for  want  of  parties 
must  show  who  are  the  proper  parties ;  not  indeed  by  name,  for  that 
might  be  impossible  ;  but  in  such  a  manner  as  to  point  out  to  the  plain- 
tiff the  objection  to  his  bill,  and  enable  him  to  amend  by  adding  the 
proper  parties.    '4  Mylne  &,  Craig.  17. 


S.  II.  p.  II.]  PLEAS.  257 

of  plea  to  every  kind  of  bill,  will  necessarily  be 
noticed  :  the  distinct  pleas  applicable  peculiarly 
to  the  several  other  kinds  of  bill  will  be  next  men- 
tioned ;  and  in  the  third  place  the  frame  of  pleas 
in  general,  and  the  manner  in  which  their  validity 
may  be  determined,  will  be  considered.  Pleas  to 
original  bills  will  also  be  considered  under  the  two 
heads  of  pleas  to  relief  and  pleas  to  discovery  only, 
and  these  will  necessarily  involve  the  consideration 
of  pleas  to  bills  of  discovery  merely. 

A  demurrer  has  been  mentioned  to  be  the  proper  ^^^V^^^""' 

I         V  answer  ib  ne- 

mode  of  defence  to  a  bill  when  any  objection  to  *=^«"'"y- 
it  is  apparent  on  the  bill  itself,  either  from  matter 
contained  in  it,  or  from  defect  in  its  frame,  or  in  the 
case  made  by  it.  When  an  objection  to  a  bill  is 
not  apparent  on  the  bill  itself  (z),  if  the  defendant 
means  to  take  advantage  of  it,  he  ought  to  show  to  ["2191 
the  court  the  matter  which  creates  the  objection,  258 

either  by  answer,  or  by  plea  which  has  been  descri- 
bed as  a  special  answer,  showing  or  relying  upon 
one  or  more  things  as  a  cause  why  the  suit  should 
be  either  dismissed,  delayed  or  barred  (ci)  (1). 
The  defence  proper  for  a  plea  is  such  as  reduces 
the  cause,  or  some  part  of  it,  to  a  single  point  (h), 

(«)  See  Billing  v.  Flight,  1  Madd.  (a)  Prao.  Reg.  324  ;  Wy.  Ed.  2 
R.  230.  Sch.  &  Lefr.  725 ;  1  Madd.  R.  194. 

(6)  lAtk.54;  15  Ve8.82,377  (2). 

(1)  [The  correctness  of  this  definition  of  a  plea  recognized  and  illus- 
trated by  Lube,  p.  238 ;  and  see  Lord  Drogheda  v.  Malone.,  Finlay'a 
Digest,  449.  Carroll  v.  Warivg,  3  Gill  &  JohiK«.  491.  As  a  demurrer 
collects  the  negative  rule  of  law  from  the  com|ilainant's  own  statement, 
BO  the  plea,  on  the  other  hand,  deduces  the  same  conclusion  from  a  new 
etatement  by  the  defendant.     Lube,  341.] 

(2)  [Goodrich  v.  Pendleton,  3  J.  C.  R.  384.  It  must  be  perfect  in 
itself,  so  that,  if  true  in  fact,  it  will  put  an  end  to  the  cause.     Allen  v. 


258  PLEAS.  [Chap.  II. 

and  from  thence  creates  a  bar  to  the  suit,  or  to  the 
part  to  which  the  plea  apphes  (r)  (1).  It  lias  been 
observed,  that  the  end  of  a  plea  is  to  save  to  the 
parties  the  expense  of  an  examination  of  witnesses 
at  large  ;  and  that  therefore  it  is  not  every  good  de- 
fence in  equity  that  is  good  as  a  plea  :  for  that 
where  the  defence  consists  of  a  variety  of  circum- 
stances, there  is  no  use  of  a  plea,  as  the  examina- 
tion must  still  be  at  large  ;  and  the  effect  of  allow- 
ing a  plea  would  be,  that  the  court  would  give 
judgment  on  the  circumstances  of  the  case  before 
they  were  made  out  by  proof  (d), 
of  S"*^*^*"  Pleas  have  been  generally  considered  as  of  three 
sorts  :  to  the  jurisdiction  of  the  court ;  to  the  per- 
son of  the  plaintff  or  defendant  ;  and  in  bar  of  the 
suit  (2).  As  they  have  been  usually  arranged  un- 
der these  heads,  it  may  be  convenient  to  consider 
them  in  some  degree  with  reference  to  that  ar- 

(c)  2  Bligh,  P.  C.  614.  54;  S.  C,  1  Harr.  Chan.  Prac.  356  ; 

(d)  Chapman   v.  Turner,  1  Atk.     2  Bligh,  P.  C.  614. 

. \ 

Randolph,  4  lb.  693 ;  Lord  Drogheda  v.  Malone,  supra.  Where  a  de- 
fence consists  of  a'variety  of  distinct  facts  and  circumstances,  there 
can  be  no  saving  by  plea.  Laud  v.  Sergeant,  1  Edwards'  V.  C.  Re- 
ports, 164. 

A  plea  will  be  overruled  if  it  does  not  set  forth  any  new  matter, 
although  the  objection  raised  by  it  would  have  been  valid  if  it  had  been 
urged  by  way  of  demurrer.     Cozine  v.  Graham,  2  Paige's  C.  R.  177.] 

(1)  Ihe  plea  must  be  of  some  fact  which  if  proved  will  be  a  bar  to 
the  entire  suit,  or  at  least  to  an  entire  substantive  part  of  the  suit,  and 
in  the  latter  case  if  it  does  not  go  to  the  whole  suit,  the  defendant  must 
answer  or  demur  to  the  residue.  A  defendant  may  plead  to  part,  an- 
swer to  part,  and  demur  to  part,  where  his  case  requires  it ;  but  in 
some  form  he  may  meet  the  whole  substance  of  the  bill.  Newton  v. 
Thayer,  17  Pick.  R.  132,  129. 

(2)  [Mr.  Beames,  however,  very  properly  adds  a  fourth  class,  which 
he  terms  to  the  bill.     Willis,  486,  note  (a).] 


S.  11.  p.  II.]  PLEAS.  258 

rangment ;  but  the  order  before  observed  in  treating 

of  demurrers  may  be  at  the  same  time  pursued  ; 

and  pleas  may  be  considered  with  reference  to  the     [220] 

several  grounds  already  mentioned  on  which  de-  "^9 

fence  may  be  made  to  a  bill. 

The  objections  to  the  relief  sought  by  an  original  P|«a« *«  o^sinai 
bill  which  can  be  taken  advantage  of  by  way  of 
plea,  are  nearly  the  same  as  those  which  may  be 
the  subject  of  demurrer  ;  but  they  are  rather  more 
numerous,  because  a  demurrer  can  extend  to  such 
only  as  may  appear  on  the  bill  itself,  whereas  a  plea 
proceeds  on  other  matter.  The  principal  are, 
I.  That  the  subject  of  the  suit  is  not  within  the 
jurisdiction  of  a  court  of  equity  ;  IT.  That  some 
other  court  of  equity  has  the  proper  jurisdiction  ; 
III.  That  the  plaintiff  is  not  entitled  to  sue  by  rea- 
son of  some  personal  disability  ;  IV.  That  the 
plaintiff  is  not  the  person  he  pretends  to  be,  or  does 
not  sustain  the  character  he  assumes  ;  V,  That  the 
plaintiff  has  no  interest  in  the  subject,  or  no  right 
to  institute  a  suit  concerning  it  ;  VI.  That  he  has 
no  right  to  call  on  the  defendant  concerning  it  ; 
VII.  That  the  defendant  is  not  the  person  he  is 
alleged  to  be,  or  does  not  sustain  the  character  he 
is  alleged  to  bear  ;  VIII.  That  the  defendant  has 
not  that  interest  in  the  subject  which  can  make  him 
liable  to  the  demands  of  the  plaintiff ;  IX.  That  for 
some  reason,  founded  on  the  substance  of  the  case, 
the  plaintiff  is  not  entitled  to  the  relief  he  prays  ; 
[X.  That  the  defendant  has  an  equal  claim  to  the 
protection  of  a  court  of  equity  to  defend  his  posses- 
sion, as  the  plaintiff  has  to  the  assistance  of  the 


260  PLEAS.  [Chap.  IL 

court  to  assert  his  right]  (1).  Of  these,  the  second 
is  the  plea  generally  termed  a  plea  to  the  jurisdic- 
tion of  the  court ;  and  the  third,  the  fourth,  and  the 
seventh,  are  treated  as  pleas  to  the  person  of  the 
[221]  plaintiff  and  defendant  ;  the  others  are  considered 
as  pleas  in  bar  of  the  suit.  XI.  The  deficiency 
of  a  bill  to  answer  the  purposes  of  complete  justice 
may  also  be  shown  by  plea,  which  may  be  consid- 
ered as  in  bar  of  the  suit,  though  perhaps  a  tem- 
porary bar  only.  XII.  The  impropriety  of  un- 
necessarily multiplying  suits  may  be  the  subject  of 
plea,  which  is  also  in  bar  of  the  suit  :  but  the  in- 
convenience which  may  arise  from  confounding 
distinct  matters  in  the  saitie  bill,  as  it  must  be  ap- 
parent on  the  bill  itself,  unless  very  artfully  framed, 
can  in  general  only  be  alleged  by  demurrer. 

riXtion''^  ^"  Those  pleas  which  are  commonly  termed  pleas 
to  the  jurisdiction  of  the  court,  do  not  dispute  the 
rights  of  the  plaintiff  in  the  subject  of  the  suit,  or 
that  they  are  fit  objects  of  the  cognizance  of  a  court 
of  equity,  but  simply  assert  that  the  court  of  chan- 
cery is  not  the  proper  court  to  take  cognizance  of 

pieM  to  the  per-  thoso  rights.  Plcas  to  the  person  of  the  plaintiff 
also  do  not  dispute  the  validity  of  the  rights  which 
are  made  the  subject  of  the  suit,  but  object  to  the 
plaintiff  that  he  is  by  law  disabled  to  sue  in  a  court 
of  justice,  or  cannot  institute  a  suit  alone  ;  or  that 
he  is  not  the  person  he  pretends  to  be,  or  does  not 
sustain  the   character   he  assumes.     Pleas  in  bar 

Pleas  in  bar.      ^j-g  commouly  described  as  allegations  of  foreign 


(1)  The  passage  within  the  brackets  is  inserted,  and  the  following 
numerals  are  altered  from  X.  and  XI.  to  XI.  and  XII.,  in  order  to  make 
this  part  agree  with  what  occurs  at  original  pnges  [274^  and  [280]. 


S.  II.  p.  II.]  PLEAS.  •  26a 

matter,  whereby,  supposing  the  bill,  so  far  as  it  is 
not  contradicted  by  the  plea  (e)  to    be  true,  yet  261 

the  suit,  or  the    part  of  it  to  which  the  plea  ex- 
tends, is    barred  (/).     But  this   description   per- 
haps does  not  comprise  every  kind  of  plea,  or  does 
not  mark   the   distinctions  between    the   different      [222] 
kinds  with  sufficient  accuracy. 

I.  The  general  objects  of  the  jurisdiction  of  a  rigdlS."^  ^"' 
court  of  equity,  and  the  manner  in  which  a  want  of 
jurisdiction  may  be  alleged  by  demurrer,  when  a 
bill  does  not  propose  to  attain  any  of  those  objects, 
or  it  is  apparent  on  the  face  of  it  that  none  can  be 
attained  by  it,  have  been  already  mentioned.  A 
case  which  is  not  really  such  as  will  give  a  court 
of  equity  jurisdiction  cannot  easily  be  so  disguised 
in  a  bill  as  to  avoid  a  demurrer  ;  but  there  may  be 
instances  to  the  contrary  ;   and  in  such  cases  it 

(e)  2  Atk.  51.  (/)  Prac.  Reg.  327,  VVy.  Ed  ;  1 

Madd.  R.  194(l)i 

(1)  [The  rules  which  have  been  adopted  in  England  in  relation  to 
pleas  in  bar  to  bills  in  equity,  when  resorted  to  by  defendants,  are  con- 
sidered as  applicable  in  the  equity  courts  of  Maryland.  Chase  v.  M Don- 
ald, 1  Harris  &,  Johnson,  160.  A  plea  in  bar  to  a  bill  in  equity,  deny- 
ing part  of  the  material  facts  stated  in  the  bill,  is  not  good.  A  mere 
denial  of  facts  is  proper  for  an  answer,  but  not  for  a  plea.  Milligan  v. 
Milledge,  3  Cranch,  220.] 

The  genera'l  rule  of  the  court  of  chancery  is:  matters  in  abatement 
and  to  the  jurisdiction,  being  preliminary  in  their  nature,  mu?t  be  taken 
advantage  of  by  plea;  and  cannot  in  a  general  answer  which  necessa- 
rily admits  the  right  and  capacity  of  the  party  to  sue.  Livingston  v. 
Story,  11  Peters,  393,  351. 

A  plea  to  the  jurisdiction,  as  the  allegement  of  plaintiff,  is  a  plea  in 
abatement  for  a  gen  ral  answer,  admits  the  competency  of  the  court  to 
entertain  the  suit,  bat  if  the  objection  is  apparent  on  the  record  the 
court  will  dismiss  it  whether  parties  will  consent  or  not.  It  is  a  great 
mistake  to  suppose  if  parties  do  not  object  to  a  matter,  the  court  are 
bound  to  entertain  cognizance  of  it  and  decide  it.  Wood  v.  Mann,  1 
Sumner  R.  580,  et  seq.  678. 


261  PLEAS.  [Chap.  II. 

should  seem  a  plea  of  the  matter  necessary  to  show 
that  the  court  has  not  jurisdiction  of  the  subject, 
though  perhaps  unavoidably  in  some  degree  a  ne- 
gative plea,  would  hold  (g).  Thus,  if  the  jurisdic- 
tion was  attempted  to  be  founded  on  the  loss  of  an 
instrument,  where,  if  the  defect  arising  from  the 
supposed  accident  had  not  happened,  the  courts  of 
ordinary  jurisdiction  could  completely  decide  upon 
the  subject,  perhaps  a  plea,  showing  the  existence 
of  the  instrument,  and  that  it  was  in  the  power  of 
the  plaintiff  to  obtain  a  production  of  it,  ought  to 
be  allowed,  though  instances  of  this  sort  of  plea 
may  not  occur  in  practice.  For  it  seems  highly 
unreasonable  that  a  plaintiff,  by  alleging  a  falsehood 

262  in  his  bill,  should  be  permitted  to  involve  a  defend- 
ant in  the  expense  of  a  suit  in  equity,  though  the 
bill  may  finally  be  dismissed  at  the  hearing  of  the 

[223]  cause,  if  the  defendant  answers  the  case  made  by 
it,  and  enters  into  his  defence  at  large.  No 
authority,  however,  occurs  to  support  such  a  plea 
(/*)  ;  and  as  there  is  little  disposition  in  the  courts 
of  equity  to  countenance  those  defences  which 
tend  to  prevent  the  progress  of  a  suit  to  a  hearing 
in  the  ordinary  way,  whatever  the  expense  of  the 
proceeding  may  be,  it  would  hardly  be  prudent  to 
endeavor  thus  to  put  a  stop  to  an  attempt  to  transfer 
the  jurisdiction  of  a  suit  from  the  ordinary  courts 
to  a  court  of  equity  ;.  and  indeed  the  guard  put  upon 
cases  of  this  kind,  by  requiring  the  affidavit  of  the 
plaintiff  of  the  truth  of  the  matter  which  he  alleges 
by  his  bill  to  support  the  jurisdiction  of  the  court, 
is  likely  to  prevent  any  abuse  upon  this  head. 

ig)  See  Armitagev.  Wadaworth,         (A)  See  1  Madd.  R.  195. 
1  Madd.  R  189. 


S.  II.  p.  II.]  PLEAS.  262 

II.  Though  the  subject  of  a  suit  may  be  'within  i'^o^^^f* 
the  jurisdiction  of  a  court  of  equity,  yet  if  the  court  p?^p'i'r  j^dic- 
of  chancery  is  not  the  proper  jurisdiction,  the  de- 
fendant may  plead  the  matter  which  deprives  the 
court  of  jurisdiction,  and  show  to  what  court  the 
jurisdiction  belongs  (i),  and  upon  this  ground  may 
demand  the  judgment  of  the  court  whether  he  shall 
be  compelled  to  answer  the  bill  (k)  (1).  Pleas  of 
this  nature  arise  principally  where  the  suit  is  for 
land  within  a  county  palatine  (/)  (2),  or  where  the 
defendant  claims  the  privileges  of  an  university  (m),  263 

or  other  particular  jurisdiction  {n).  [224] 

The  court  of  chancery  being  a  superior  court  of 
general  jurisdiction,  nothing  shall  be  intended  to 
be  out  of  its  jurisdiction  which  is  not  shown  to  be 
so  (o)  (3).  It  is  requisite,  therefore,  in  a  plea  to  the 
jurisdiction  of  the  court,  to  allege  that  the  court 

(t)    Earl   of  Derby    v.    Duke   of  in  the  same,  and  for  lands  there,  and 

Athol,  1   Yes.  202;     Nabob   of  the  matters  local.    Nels.  Rep.37, 66.  Sea 

Carnatic  v.  E.  I.  Camp.,  1  Ves.  Jun.  also  Willoughby  v.  Brearton,  Gary's 

371  ;  S.  C.  S'Bro.  C.C.  292.  Rep.  60  ;  Gerrard  v.  Stanley,  1  Cha. 

(i)    Ch.    Prac.  417,  420;  3  Atk.  Rep.  278. 

264.  (/n)  Temple  v.   Foster,  Gary  Rep. 

(J)    Gom.    Dig.    Gtian.    Plea    1.1  65  ;   Cotlan  v.  Maneriug,  Gary  Rep. 

Chan.  Prac.  420  ;   Edgworth  v.  Da-  73  ;  Drapers.  Crowther,  2  Vent. 362  ; 

vies,  1  Ga.  inGha.  40.  Reported,  upon  Stephens  v.  Berry  1  Veni.212. 

view  of  precedents,  that  the  jurisdic-  («)  See   Cunningham  v.  Wegg,  2 

tion  of  the  counties  palatine  was  al-  Bro.  G.  G.  241. 

lowed,  between  parties  dwelling  with-  (o)  1  Ves.  204  ;  2  Ves.  357. 

(1)  As  to  plea  to  jurtsdlction  of  a  state  court  by  foreign  consul  or 
public  minister,  and  the  doctrine  of  their  exemption  fro:n  suit  in  state 
courts,  see  Davis  v.  Packard  and  others,  (on  mandate  from  the  Su- 
preme Court  of  the  United  States  upon  revertsal  of  a  decision  of  the 
Court  of  Errors  of  New-York,)  10  Wend.  R.  53,  et  seq  74,  60. 

(2)  See  note,  page  6. 

(3)  Tiie  mere  fact  that  a  case  is  in  conformity  with  the  principles  of 
natural  equity  and  justice,  is  not  sufficifnt  to  bring  it  within  the  juris- 
diction of  a  court  of  equity.  There  are  many  principles  of  natural 
equity  and  justice  which  are  not  attempted  to  be  enforced  therein. 
Howe  V.  ^heppard,  2  Sumner's  C.  C.  R.  409. 


263  PLEAS.  [Chap.  IL 

has  nol  jurisdiction  of  the  subject,  and  to  show  by 
what  means  it  is  deprived  of  jurisdiction  (^;).  It 
is  hkewise  necessary  to  show  what  court  has  ju- 
risdiction (q).  If  the  plea  does  not  properly  set 
forth  these  particulars  (r)  it  is  bad  in  point  of 
form  (s).  In  point  of  substance  it  is  necessary,  to 
entitle  the  particular  jurisdiction  to  exclusive  cog- 
nizance of  the  suit,  that  it  should  be  able  to  give 
complete  remedy  (t).  A  plea,  therefore,  of  privi- 
lege of  the  university  of  Oxford,  to  a  bill  for  a 
specific   performance   of  an   agreement  touching 

264  .      lands  in  Middlesex,  was  overruled ;  for  the  univer- 

sity court  could  not  give  complete  relief  (i^).  And 
[225]  if  a  suit  is  instituted  against  different  persons,  some 
of  whom  have  privilege,  and  some  not  (x)  ;  or  if 
one  defendant  is  not  amenable  to  the  particular 
jurisdiction  («/),  a  plea  will  not  hold.  If,  likewise, 
there  is  a  particular  jurisdiction,  and  yet  the  parties 
to  litigate  any  question  are  both  resident  within 
the  jurisdiction  of  the  court  of  chancery  ;  as  upon 
a  bill  concerning  a  mortgage  of  the  island  of  Sarke, 
both  mortgagor  and  mortgagee  residing  in  Eng- 
land, the  court  of  chancery  will  hold  jurisdiction  of 
the  cause  :  for  a  court  of  equity  agit  in  per  so- 

(p)  See  3  Bro.  C.  C  301  ;  1  Ves.  (t)  Newdigaie  v.  Johnson,  2  Ca- 

Jun.  388.  in  Cha.  170  ;  Wilkins  v.  Chalcroft, 

(q)  Strode  y.  Little,  1  Vern.  59  ;  22  Vin.  Abr.lO  ;  Green  v.  Ruther- 

Earl  of  Derby  v.  Duke  of  Athol,  1  forth,  1  Ves.  463. 

Ves.  202  ;  S".  C.  Dick.  129.  -    (m)  Draper  v.  Crowther,  2  Ventr. 

(r)  See  Moor   v.  Somerset,  Nels.  362;  Siepherisv.  Berry,  \  Vein.  212. 

Rep.  51  ;  and  see  9  Mod.  R.  95.  (x)  Lowgher  v.   Lowgher,  Gary's 

(s)  Foster  v.  Vassall,  3  Atk.  587.  Rep.  55  ;  S".  C.  22  Vin.  Abr.  9  ;  Fan- 

And  see  Nabob  of  Arcot  v.  East  Ind.  shaw  v.  Fanshaw,  1  Vern.  246. 

Comp.  3  Bro.  C.  C.  292  ;  S.  C.  1  Ves.  (y)  Grigg's  case,  Hutton,  59  ;  and 

Jun.  371.  see  4  Inst.  213  ;  Hilton  v.  Lawsoriy 

Gary's  R.  48. 


B.  11.  P.  II.]  PLEAS.  264 

n(iin(z).  So  where  the  court  may  not  have  juris- 
diction to  give  relief,  it  may  yet  entertain  a  bill  for 
a  discovery  in  aid  of  the  court  which  can  give 
relief,  if  the  same  discovery  cannot  be  there  ob- 
tained ;  as  if  the  jurisdiction  be  in  the  king  in  coun- 
cil, where  the  defendant  cannot  be  compelled  to 
answer  upon  oath  (a). 

Similar  to  a  plea  to  the  jurisdiction  is  the  case  of 
a  plea  to  an  information  charging  an  undue  election 
of  a  fellow  of  a  college  in  one  of  the  universities, 
"  that  by  the  statutes  the  visitor  of  the  college  ought 
*'  to  determine  all  controversies  concerning  elec- 
"  tions  of  fellows,  and  that  such  controversies  ought 
"  not  to  be  determined  elsewhere  (^)."  But  the 
extent  of  the  visitor's  authority  must  be  averred,  265 

and  it  must  also  be  averred  that  he  is  able  to  do 
complete  justice  (r).     And  where  there  is  a  trust 
created,  the  visitor  having  no  power  to  compel  per-      [226] 
formance  of  the  trust,  relief  must  be  had  in  the 
king's  courts  of  general  jurisdiction  (d). 

III.  In  respect  to  the  person  of  the  plaintiff,  it  m.  Dieabiiity  of 

^  .       *  ,  ^  the  plaintifl". 

may  be  shown  that  he  is  disabled  to  sue,  as  being, 
1,  outlawed  ;  or  2,  excommunicated  ;  or  3,  a  popish 
recusant  convict ;  or  4,  attainted  in  a  premunire,  or 
of  treason  or  felony ;  or  5,  an  alien  ;  or  it  may  be 
shown,  6,  that  the  plaintiff  is  incapable  of  insti- 
tuting a  suit  alone.  A  plea  of  this  kind  is  in  the 
nature  of  a  plea  in  abatement  of  the  suit. 

(2)  Toller  V.  Carteret,  2  Vern.  494 ;  (c)  1  Ves.  474. 

1  Ves.  204  ;  3  Ves.  182  ;  5  Madd.  307.  (d)  Green  v.  Riitherforth,  1  Ves. 

(a)  1  Ves.  20S.  462  ;  and  see  4  Bro.  C.  C.  167  ;  2  Ves. 

(6)  Att.  Gen.   v.    Talbot,  3  Atk.  Jun.   47  ;   13    Ves.    533  ;  Ex  parte 

662  ;  S.  C.l  Vee.  78.  And  see  1  V^s.  Berkhamstead  Srhool,  2  Ves.  &.  B. 

472,  474,  475  ;  2  Ves.  328.  134. 


265  PLEAS.  [Chap.  11. 


1.  Oatlawry. 


1.  A  person  outlawed  is  disabled  from  suing  in 
a  court  of  justice,  and  if  a  bill  is  filed  in  his  name 
the  defendant  may  plead  the  outlawry,  which, 
whilst  it  remains  in  force,  will  delay  the  proceed- 
ing (e).  The  record  of  the  outlawry,  or  the  capias 
thereupon,  must  be  pleaded  sub  ijede  sigilli,  and 
is  usually  annexed  to  the  plea  (/)  (1).  A  plea  of 
266  outlawry,  in  a  suit  for  the  same  duty  or  thing  for 

[227]  which  relief  is  sought  by  the  bill,  is  insufficient  ac- 
cording to  the  rule  of  law,  and  shall  be  disallowed 
of  course,  as  put  in  for  delay  (^).  Otherwise  a 
plea  of  outlawry  is  always  a  good  plea,  so  long  as 
the  outlawry  remains  in  force  (A);  but  if  that  shall 
be  reversed,  the  plaintiff,  upon  payment  of  costs, 
may  sue  out  fresh  process  against  the  defendant, 
and  compel  him  to  answer  the  bill  (^).  Outlawry 
in  a  plaintiff,  executor  or  administrator,  cannot  be 
pleaded  ;  for  he  sues  in    auter  droit  (k).     It  is 

{e)  A  plea  of  outlawry  may  be  filed  alluded  to  had  been  omitted,  by  mis- 

without  oath,  1    Ca.  in    Cha.  258   ;  takeof  the  clerk  of  the  outlawries,  the 

Took  V.  Took, 2  Vern.  198  ;  Anon.'i  plea  was  allowed  to  be  amended,  by 

Freem.  143,  Hovend,  Ed.:  but  see  annexingtoit  an  office-copy  of  the  ex- 

Parrotv.  Bowden,  ib.  37,  the  main  igent,  or  record  of  the  outlawry.'    Wa- 

fact  appearing  upon  record,  Ord.  in  ters  v.  Mayhew,  I  Sim.  &  Stu.  220. 
Cha.  Ed.  Bea.  23  ;  2  Ves.  &  Bea.  357  ;         (g)  See  Philips  v.  Gibbons,  1  Ves. 

and  a  mere  averment  of  identity  being  &  Bea.  184  ;  Ord.  in  Cha.  Ed.   Bea. 

considered  sufficient,  2    Vern,  199  ;  175. 

and  see  19  Ves.    83.     And    such  a         (h)  Or.  in  Cha.  Ed.    Bea.  175  ;  3 

plea  may  be  filed  by  a  defendant  who  Bac.  Abr.  761,  Outlawry  (3). 
isincontempt.     Waters  v.  Chambers,         (t)  Ord.  in  Cha.  Ed.  Bea.  175  ;  and 

I  Sim.  &  Stu.  225.  see  Peyton  v.  Agliffe,  2  Vern.  312. 

(/)  TothiU,  54  ;  Prac.  Reg.    327,         (k)  Killigrew  v.  Killigrew,  1  Vern. 

Wy.  Ed. ;  Ord.  in  Cha.  Ed.  Bea.  27.  184 ;  Pxac.  Reg.  326,  Wy.  Ed. 
And  in  a  case  in  which  the  formality 


(1)  [See  the  form  of  Each  a  plea,  Willis,  503.  Outlawry  can  take 
place  in  the  State  of  New-York  only  upon  a  conviction  fur  treason.  2 
Revised  Statutes,  653,  745.] 


S.  II.  p.  II.]  PLEAS.  266 

equally  insufficient  if  alleged  in  disability  of  a  per- 
son named  in  a  bill  as  the  next  friend  of  an  infant 
plaintiff  (Z),  or  in  an  information  as  a  relator  (w). 

2.  The  defendant  may  plead  tliat  the  plaintiff  is  ^  Excommuni. 

J    r  I  cation. 

excommunicated  (?^)  (1),  which  must  be  certified 
by  the  ordinary,  either  by  letters  patent  containing  267 

a  positive  affirmation  that  the  plaintiff  stands  ex- 
communicated, and  for  what ;  or  by  letters  testi- 
monial, reciting,  "quod  scrutatis  registeriis  inveni- 
tur,^^  &c.  Either  of  these  certificates  must  be  sub 
sigillo,  and  so  pleaded  (o).  Excommunication  is  [2283 
a  good  plea  to  an  executor  or  administrator,  though 
they  sue  in  aiiter  droit  (p),  hut  not  to  the  next 
friend  of  an  infant  (q).  This,  like  the  plea  of  out- 
lawry, ceases  to  be  a  bar  when  the  disability  is  re- 
moved ;  and  therefore  the  plaintiff,  purchasing  let- 
ters of  absolution,  may,  as  at  law,  sue  out  fresh 
process,  and  compel  the  defendant  to  answer  the 
bill  (r). 

3.  By  statute  3  Ja.  I.  c.  5,  s.  11,  every  popish  3  p^p^t 

(Z)  Prac.  Reg,  327,  Wy.  Ed.  appear  upon   record.     Ord.   in  Cha. 

(m)  There  is  a  case,  Att.  Gen.  v.  Ed.  Bea.  26,  and  2  Ves.  &  Bea.  327. 
Heath,  Prec.    in   Cha.  13,    where  a         (o)  Ord.  in  Cha.  Ed.  Bea.  27  ;  Prac. 

plea  of  outlawry,  in  disability  of  the  Reg.  327,  Wy.  Ed.  Totliill,  54. 
person  of  a  relator,    is  said  to  have         (p)  Co.  Litt.  134,  a.  ;  2  Bac.  Abr. 

been  allowed  in  the  duchy-court  of  319  ;  Exconi.  (D). 
Lancaster.     But  the  relator  seems  to         (q)  Prac.  Reg.  278. 
have  sustained  the  cliaracter  of  plain-         {r)  Amers  v.  Legg,  Choice   Ca.  in 

tiff  as  well  as  of  relator.     See  3  Bac.  Cha,  164  ;  Prac.  Reg.  327,  Wy.  Ed. 

Abr.  762,  OiUlavvry  (3)  ;  and  see  also  It  should  here  be  mentioned,  that  by 

Waller  v.  Hanger,    2  Bulstr.  134  ;  stat.  53  Geo.  III.  c.  127,  e.xcommuni- 

Palmer's  case,  And.  30.  cation  is  discontinued,  except  in  cer- 

(n)  And  this  plea    may  be  put  in  tain  cases  therein  specified, 
without  oath,  if  the  e.\comnuiuication 


(1)  This  disability  lias  been  removed  by  the  stat.  53  Geo.  III.  c. 
127,  8.  3. 


267  PLEAS.  [Chap.  II. 

recusant  convict  is  in  many  cases  disabled  to  sue  (1), 
in  the  same  manner  as  a  person  excommunicated. 
The  instances  of  a  plea  of  conviction  of  recusancy 
have  probably  been  rare,  as  no  traces  of  any  occur  in 
the  books  of  reports,  nor  does  the  form  of  the  plea 
appear  in  the  books  of  practice.  If  advantage 
should  be  attempted  to  be  taken  of  this  statute,  the 
court  would  probably  require  the  same  averments  to 
support  the  plea  as  are  necessary  to  a  plea  of  the 

ggg  same  nature  at  law  (s).     This  plea  also  ceases  to 

be  a  bar  if  the  plaintiff  by  conforming  removes  the 
disability  (t). 

'*'  ^oSm  ^'  ^  plea,  that  the  plaintiff  is  disabled  from  suing 

being  attainted,  is  equally  rare  (2^).  It  would  pro- 
bably be  likewise  judged  with  the  same  strictness 
as  if  it  was  a  plea  at  law  (x). 

5.  Alienage.  5.  Thcrc  is  little  more  to  be  found  in  the  books 

upon  the  subject  of  a  plea  that  the  plaintiff  is  an 
alien  (?/)  (2).     An  alien,  who  is  not  an  alien  enemy, 

(s)  3  Bac.  Abr.  780.  Papists,    (1).  can  be  proved  by  the  record  alone. 

See  Lord  Petre  v.  Univ.  of  Cam-  v.  Danes,  19  Ves.  81 ;  2  Ves. 

bridge,  Lutwyclie,  1100.  &  Bea.  327. 

(t)  See  Stat.  31  Geo.  III.  c.   32,   s.         (y)  Burk  v.  Brown,  2  Atk.  397; 

3,  and  valuable  note  to   Co.  Litt.  p.  2  Vin.  Abr.  274,  Alien  (1)   ;  1  Bac. 

391,  a.  note  (2).  Hargr.  &  Butl.  Ed.  Abr.  83,  Alien  (D^ ;  Prac.  Reg.  327, 

j,u)  See V.  Dames,  19  Ves.  Wy.  Ed.;  Rast.  Entr.  252  ;  Bolt  v.  Att. 

81;  and  see  Ex  •parte  Bullock,  14  Gen.  1  Bro.  P.   C.  421,  Toml.  Ed. ; 

Ves.  452.   And  case  on  Irish  statutes,  Albretcht  v.  Sussman,^  Ves.  &  Bea. 

Kennedy  v.  Daly,  1   Sch.   &    Lefr.  323 ;  and  see  Ex  parte  Lee,  13  Ves. 

355.  64  ;  and  Ex  parte    Boussmaker,  13 

(x)  2  Atk.  399.     This  kind  of  plea  Ves.  71. 
is  not  to  be  supported  by  oath,  but 


(1)  This  disability  has  been  removed  by  the  stat.  31  Geo.  III.  c.  32. 

(2}  [See  the  form  of  a  plea  that  the  complainant  is  an  alien  enemy. 
Willis,  513;  2  Equity  Draft  94,  (2d  edit.);  and  the  form  of  the  one  which 
was  used  in  Albretcht  v.  Sussman,  (sujir.ii.)     Jieames  on  Pleas,  329.] 


S.  II.  p.  II.]  PLEAS.  268 

is  under  no  disability  of  suing  for  any  personal  de- 
mand («/)  ;  and  an  alien  enemy  may  sue  under  some 
circumstances  (z).  A  plea  has  been  put  in  to  a 
bill  filed  by  an  alien  infidel  not  of  the  Christian 
faith,  and  was  attempted  to  be  supported  upon  the 
ground  that  the  plaintiff  was  upon  a  cross-bill  in-  269 

capable  of  being  examined  upon  oath.  The  plea 
was  overruled  without  argument  (a). 

6.  If  a  bill  is  filed  in  the  name  of  any  person  in-  rertJ^eStey, 
capable  alone  of  instituting  a  suit,  as  an  infant  (1),     r^SO] 
a  married  woman  (2),  or  an  idiot  or  lunatic  (3),  so 
found  by  inquisition,  the  defendant  may  plead  the 
infancy,  the    coverture  (h),  or  the    inquisition    of 
idiotcy  or  lunacy  (c),  in  abatement  of  the  suit. 

IV.  A  plea  that  the  plaintiff  is  not  the  person  plaintiff^?*  not 

,  II  ■.  -11  '^^     person    he 

he  pretends  to  be,  or  does  not  sustam  the  character  pretends  to  be, 

'■  _  or  doee  not  8u«- 

he  assumes,  and  therefore  is  not  entitled  to  sue  as  ^'v^e  ^^"}f" 

'  ter  he  asaumei. 

such  {d)y  though  a  negative  plea,  is  good  in  abate- 

(y)   Ramkissenseat  v.    Barker,  1  &nd  Fisher,  in  Doug,  note  1,  p.  626. 

Atk.  51.     As  to  the  incapacities  of  But  the  latter  case   was  afterwards 

aliens  to  take  and  to  hold  certain  pro-  reversed  in  the  Exchequer  Chamber, 

perty,  see  Co.  Litt.  2,  b.,  and  notes  in  16th  Nov.  1784.     And  see   Evana  v. 

Ilargr.  &  Bull.  Ed.     In  such  cases,  Richardson,  3   Meriv.  469. 

it  is  presumed  that  a  plea  of  mere  (a)    Ramkissenseat  v.  Barker,    I 

alienage,  if  properly  framed,  would  Atk.  51. 

be  a  sufficient  defence.     See  Co.  Litt.  (b)  Prac.  Reg.  326,  Wy.  Ed. 

129  (6)  ;  and  Burk  v.  Brown,  2  Atk.  (c)  See  case  of  the  plaintiff  being 

397.  in  a  state  of  mere  mental  incapacity, 

(z)  3  Burr.  1741 ;   1  Bac.  Ab.  84,  Wartnaby  v.    Wartnaby,   1  Jac.  H. 

Alien  (D) ;  Doug.  619;  Cornu  and  377. 

Blackburne,  and  the  case  of  Anthon  {d)  Prac.  Reg.  326,  Wy.  Ed. 


(1)  [See  the  form  of  a  pica  of  infai.cy  to  a  bill  exhibited  without  a 
next  friend,  Willis,  614.] 

{2)  [See  the  form  of  a  plea  of  coverture  of  the  complainant,  Wiliia, 
615.] 

(3)  [See  the  form  of  a  plea  of  lunacy,  Willis,  616.] 

23 


^9  PLEAS.  [Chap.  II. 

ment  of  the  suit ;  as  where  a  plaintiff  entitled  him- 
self as  administrator,  (1)  and  the  defendant  plead- 
ed that  he  was  not  administrator  (e).  And  where  a 
plaintift*  entitled  himself  as  administrator  of  an  in- 
testate, and  the  defendant  pleaded  that  the  sup- 
posed intestate  was  living  (/),  the  plea  was  allow- 
ed (2).  It  has  been  made  a  question  how  far  a 
negative  plea  can  be  good  (g).  To  a  bill  by  a 
person  claiming  as  heir  to  a  person  dead,  the  de- 
fendant pleaded  that  another  person  was  heir,  and 
that  the  plaintiff  was  not  heir  to  the  deceased,  and 
the  plea  was  overruled  (k),  but  this  decision  was 

{e)Winn  v.  Fletcher,  1  Vera.  473  ;  in  the  next  page  (3). 

hut  Bee  Felly.  Lutwidge,  2  Mk.  120;  Ui)   Newman    v.    Wallis,   2  Bro. 

3  Barnard,  320.  C.  C.  142  ;  and  see  Gunn  v.  Prior, 

(/)    Ord   V.    Huddleston,    Dick.  Dick.  657;  S.  C.  1    Cox,  R.  197  ; 

510 ;  S.  C.  cited  Cox,  R.  198.  Forrest,    Ex.  R.  88,  n.  Kinnersly  v. 

{g)  But  that  question  has  been  set  Simpson,  Forrest,  85.     See  also  Earl 

at  rest.     11  Ves.  302,305.     See  in-  of  Strathmore  v.  Countess  of  Strath- 

etances  of  negative  pleas  referred  to  more,  2  Jac.  &  W.  541. 


(1)  Plea  that  plaintiff  is  not  administrator,  he  not  having  taken  out 
letters  in  the  state  where  he  filed  his  bill,  (though  he  had  in  another 
state  where  he  was  a  citizen,)  was  held  good  on  general  principles.  If 
in  former  case  he  take  out  letters,  he  might  file  his  bill  in  tl  e  Circuit 
Court  of  the  United  States  as  a  citizen  of  the  latter  state  in  his  cha- 
racter as  administrator.     Carter  v.  Treadwell,  3  Story  R.  42,  60,  25. 

[If  a  complainant  sues  as  executrix,  and  has  not  obtained  probate, 
the  defendant  may  raise  the  objection  by  plea.  Bourke  v.  Kelly,  1  Ho- 
gan,  172;  Simons  v.  Milman,  2  Sim.  241. 

The  truth  of  a  plea  that  the  complainant  is  not  the  executrix  of  her 
testator,  must  be  tried  under  a  reference  and  not  a  replication.  Bourke 
V.  Kelhj,  supra. 

As  to  swearing  to  a  plea  in  disability  of  the  person,  see  Woods  v. 
Creagh,  1  Hogan,  221.]  ' 

(2)  [See  the  form  of  such  a  plea,  Willis,  617,  For  the  form  of  a 
plea  by  several  defendants,  that  the  complainants  are  not  next  of  kin, 
and  averring  that  only  one  of  the  defendants  sustains  that  character. 
Equity  Drait.  104,] 

(3;  [Also  Beames  on  Pleas,  120  to  129;  Warrington  v.  Molhersiil^ 
7  Price,  666,] 


S.  II.  p.  II.]  PLEAS.  •  270 

afterwards  doubted  by  the  learned  judge  himself  (i), 
when  pressed  by  the  necessary  consequence,  that  [231] 
any  person  falsely  alleging  a  title  in  himself  might 
compel  any  other  person  to  make  any  discovery 
which  that  title,  if  true,  would  enable  him  to  re- 
quire, however  injurious  to  the  person  thus  impro- 
perly brought  into  court ;  so  that  any  person  might, 
by  alleging  a  title,  however  false,  sustain  a  bill  in 
equity  against  any  person  for  any  thing  so  far  as 
to  compel  an  answer  ;  and  thus  the  title  to  every 
estate,  the  transactions  of  every  commercial  house, 
and  even  the  private  transactions  of  every  family, 
might  be  exposed  ;  and  this  might  be  done  in  the 
name  of  a  pauper,  at  the  instigation  of  others,  and 
for  the  worst  purposes  (k)  (2).     To  avoid  this  in- 

(t)  3  Bro.  C.  C.  489 ;  1  Mudd.  R.  Hhowing  who  is  lieir,  would  be  good, 

194.     And    it  seems  to   have    been  for  that  the  defendant  might  not  be 

established,  that  in  Buch  a  case  a  plea  able  to  prove.     IG  Ves.  264,  265  (1). 

that  the  plaintiff  is   not  heir,  without  (k)  As  further   examples  of  uega- 

(1)  [And  Bee  Beames  on  Pleas,  123,  1-24,  ei  seq.  and  notes  there.] 

(2)  Saeh  a  negative  as  above  mentioned  is  a  good  plea.     And  where  Necesjity  for  an 
a  plea  is  in  subs' ance  a  negativj  plea,  tliougli  in  form  it  is  an  affirmative  p'^yin'^a'pleTol 
plea,  it  must  be  accompanied  by  an  answer  as  to  allegations  which,  it  true,  ^°  '»'•«• 
vi'oukl  disprove  the  plea.    Thus  where  the  plaintiff  claims  as  heir  ea:  parte 

materna,  and  the  defendant  pleads  that  another  person  is  heir  ex  y:arle 
faterna,  in  such  case  the  p!ea  is  in  substance  a  plea  of  no  title  as  heir, 
an  I  must  be  accompanied  by  the  answer  as  to  admissions  of  the  plain- 
tiff's title  alleged  to  have  been  made  by  the  defendant.  Harland  v. 
Emerson,  8  Bligh,  (N.  S.)  62. 

A  plea  which  negatives  to  plaintiff's  titlo,  does  not  protect  the  defen- 
dant from  answer  and  discovery  as  to  such  matters  as  are  specially 
charged  "  as  evidence,"  of  the  plaintiff's  title.  Sanders  v.  King,  2 
Sim.  &  Stu.  277.  But  it  does  protect  him  from  answer  and  discovery 
generally  as  to  the  enbject  of  the  suit;  and  indeed  as  to  all  matters 
which  the  plaintifT  does  not  distinctly  inform  the  defendant  are  the  cir- 
cumstances by  which  the  plaintiff's  title  is  lo  be  established.  Sandrs 
V.  Kivg,  2  Sim.  &  Stu.  277;   Thring  v.   Edgar,  2  Sim.  &.Stu.  274. 

Admissions  of  title,  however,  form  an  exception  to  this.     For,  in  order 


271  •  PLEAS.  [Chap.  II. 

convenience,  a  defendant  has  in  some  cases  been 
permitted  to  negative  the  plaintiff's  title  by  answer, 
and  thus  to  protect  himself  against  the  required 
discovery  ;  but  in  other  cases  this  has  not  been  al- 
lowed, and  the  subject  seems  still  to  require  further 
consideration  (/). 

live     pleas,    see     Drew     v.    Drew,  (0  See  11  Ves.  283,  296  and  303, 

2  Ves.  &  Bea.  159  ;  Sanders  v.  King,  and  the  several  cases  tliere  cited,  with 

6  Madd.  61  ;  and  Yorke  v.  Fry,  ibid,  the    discordant    opinions  of   several 

65  ;  that  plaintifFis  not  a  partner  (1) :  judges.      In   the  case  of  Gethin  v. 

and  Thring  v.  Edgar,  2  Sim.  &.  Stn.  Gale,  cited  in  Ambl.  354,  the  Master 

274  (2),  and  particularly  at  p.  280,  of  the  Rolls  sitting  for  the  Chancel- 

that  he  is  not  a  creditor.  lor,  29   Oct.  1739,  said,  it  was  one 

thing  to  deny  a  title  la  the  plaintiff, 


to  obtain  an  answer  as  to  adiuissions  of  title,  when  in  effect  a  plea  of 
no  title  is  put  in,  it  is  hot  necessary  that  the  plaintiff  should  allege 
such  admissions  "as  evidence"  of  his  right  or  title,  or  should  by  any 
other  terms  point  oat  that  he  req^iires  a  discovery  of  tliem  as  evidence 
of  his  title;  because  their  very  nature  renders  this  superfluous.  Har- 
Innd  V.  Emerson,  8  Bligh,  (N.  S.)  62. 
Plea  of  title  in  Where  a  plaintiff  claims  estates,  either  as  heir  to  the  person  last 
the    defendant,  seised,  or  as  a  remainderman  under  the  limitations  of  a  settlement  in 

without  travers- 

ingthepJaintiflPs  the  possession  of  the  defendant,  under  which,  as  he  charges,  the  person 
last  seised  took  only  a  life  estate,  or  under  t.he  limitations  of  some 
prior  seltlt  ment  in  the  possession  of  the  defendant,  which,  as  he  charges, 
the  person  last  seised  had  no  power  to  defeat ;  and  the  defendant  pleads 
that  the  person  last  seised  had  an  estate  tail,  and  suffered  a  recovery  to 
the  use  of  himself  in  fee,  and  then  devised  the  estates  to  the  defendant, 
but  takes  no  notice  of  the  settlement  particularly  mentioned  in  the  bill 
or  of  any  other  settlement,  the  plea  will  be  overruled ;  because  the  de- 
fendant ought  in  such  case  to  traverse  the  grounds  of  the  plaintiff's 
titie,  or  some  substantial  part  of  it — to  deny  the  existence  of  such  set- 
tlement, or  at  least  to  deny  the  fact  of  his  possession  or  knowledge  of 
the  contents  thereof.     Hungate  v.-  Gascoigrie,  1  Russ.  &  M.  698. 

(1)  [To  a  bill  filed  by  persons  claiming  title  to  an  estate  as  the  co- 
heirs of  A.  ex  parte  materna,  the  defendants  pleaded  that  another  per- 
son was  the  heir  of  A.  ex  parte  patcrna,  but  did  not  set  forth  the  pedi- 
gree of  that  person.  Semble,  that  such  a  plea  is  good.  Emerson  v. 
Harland,  3  Simon's  R.  490.] 
,(2)   Warrington  v.  Mothersill,  7  Price,  666.] 


S.  II.  p.  II-l  PLEAS.  272 

V.  Interest  in  the  subject  of  the  suit,  or  a  right 
to  the  thing  demanded,  and  proper  title  to  institute     [232] 

.  .  .       ,  .         ^       ^         .  J  V.  \VaIltofinte- 

a  suit  concerning  it,  have  been  mentioned  as  essen-  reet  in  the  piam- 

O       '  titt",    or  of  right 


tially  necessary  to  sustain  a  bill  ;  and  it  has  been  '"""^ 
observed,  that  if  they  are  not  fully  shown  by  the 
bill  itself,  the  defendant  may  demur.  But  a  title 
apparently  good  may  be  stated  in  a  bill,  and  yet 
the  plaintifFmaynot  really  have  the  title  he  states  (1), 

and   another  to  show  a  title  in  one's  cited  in  the  last  note,  and  in  the  notes 

self;  and  that  the  former  had  never  to  the  next  page  and  below,  Chap.  II. 

been   allowed  as  a  good  plea. — Mr.  sect.  2,  part  3.     [P.  307.] 
Cappet's    note.     See  the  authorities 

(1)  If  a  party  having  no  interest  be  joined  as  co-plaintiff  with  a  per-   piea  that  a  co- 
son  havintran  interest,  and  that  fact  does  not  appear  on  the  face  of  tlie  certificated""" 
bill,  but  is  brought  forward  by  a  plea,  such  a  plea  is  a  good  defence  to  bankrupt, 
the  suit.     An  instance  of  this  kind  occurs  where  an  uncertificated  banlv- 
rupt  is  made  a  co  plaintiff.     Makepeace  v.  Haythonie,  4  Russ.  24 1. 

If  to  a  bill  filed  by  the  assignee  of  an  insolvent  debtor,  the  defendant   ^'<''*  °'  ^^""^  °^ 
pleads  that  the  consent  ot  the  creditors  and  of  the  Insolvent  Debtors  sent  to  a  suit  by 
Court  to  the  institution  of  the  suit  had  not  been  obtained,  the  plea  will  [^gofvent  "leb^ 
be  overruled  ;  because  the  provision  made  in  tho  statute  as  to  such  con-  '"''' 
sent  is  made  for  the  benefit  of  the  creditors  alone.     Casborne  v.  Bar- 
sham,  6  Sim.  317.     See  also  note,  p.  180,  supra. 

AccordinL'  to  the  case  of  Ockleston  v.  Benson,  to  a  bill  by  the  as.-siguees,  or  of  nbankmpt. 
of  a  bankrupt  against  a  debtor,  the  latter  may  plead  that  the  suit  was 
not  instituted  with  the  consent  of  the  major  part  in  value  of  thf'  credi- 
tors, at  a  meeting  pursuant  to  the  Act  of  Parliament.  2  S.  &  S.  265. 
Butsee  precedino  paragraph  and  note,   p.  180,  supra. 

A  plea  of  no  interest  will  be  allowed,  where  a  suit  is  instituted  by  Plea  of  uo  inte- 
two  persons  on  behalf  of  themselves  and  all  other  shareholders  in  a  of aphuntfttwho 
company,  but  one  of  the  two  has  sold  and  assigned  his  shares  before  the  ^'^  nssignod. 
institution  of  the  suit.     Doyle  v.  Muntz,  10  Jur.  914,  V.  C.  W. 

To  a  bill  for  dower,  a  plea  of  ne  unqnes  accoupk,  that  is,  a  plea  that  pieaof  ;u  i/«yw« 
the  plaintiff  and  the  person  whose  widow  siie  claims  to  be  were  never  "''''""I'''- 
lawfully  married,  is  a  good  plea.     Poole  v.  Poole,  1  Coll.  Eq.  Ex.  331. 

Where  administration  is  granted   under  the  impression  that  the  de-   pie^  ^f  „<)  pro. 
ceased  died  intestate,  and  then  the  executor  files  a  bill  to  recover  part  bajfimvingbeen 

f^  granted. 

of  the  assets,  alleging  that  he  has  proved  the  will,  a  plea  of  no  probate 
having  been  granted  will  be  allowed.  For  until  probate  is  obtained, 
it  is  not  certain  but  that  the  administration  is  valid.  Suiwn  v.  Mil- 
man,  2  Sim.  241. 


273  PLEAS.  [Chap.  II. 

either  because  he  misrepresents  himself,  which  has 
been  considered  under  the  last  head,  or  because 
he  suppresses  some  circumstances  respecting  hrs 
title,  which  if  disclosed  would  show  either  that 
nothing  was  ever  vested  in  him,  or  that  the  title 
which  he  had  has  been  transferred  to  another  ;  and 
this  the  defendant  may  show  by  plea  in  bar  of  the 
suit.  As  if  a  plaintiff  claims  as  a  purchaser  of  a 
real  estate,  and  the  defendant  pleads  that  he  was  a 
papist,  and  incapable  of  taking  by  purchase  (m)  (1) ; 
or  a  plaintiff  claims  property  under  a  title  accrued 
previous  to  conviction  of  himself,  or  of  a  person  un- 
der whom  he  claims,  of  some  offence  which  occa- 
sioned a  forfeiture  (n),  or  previous  to  a  bankruptcy 
(o)  (2),  or  any  other  defect  in  the  title  (p)  of  the 

274  plaintiff  to  the  matter  claimed  by  the  bill.     A  plea 
[233]     of  conviction  of  any  offence  which  occasions  for- 
feiture, as  manslaughter,  must  be  pleaded  with 
equal  strictness   as  a  plea  of  the  same  nature  at 

(m)  See,  however,  18  Geo.  III.  c.  instance  of  a  plea  that  the  plaintiff 

60,  8.  2;  and  the  43  Geo.  III.  c.  30,  had  taken  the  benefit  of  an  act  for 

by  which  this  incapacity  is  condition-  the  relief  of    insolvent  debtors,   De 

ally  removed.  Minckwitz  v.  Udney,  16  Ves.  466. 

(n)  2  Atk.  399;  v.  Davies,  (p)   Quilter  v.  Mussendine,  G'llb. 

19  Ves.  81.  Oa.  in  Eq.  228  ;  Hitchins  v.  Lander, 

(0)  Carleton  v.  Leighton,  3  Meriv.  Coop.  R.  34  ;  Gait  v.  Osbaldeston,  1 
667.  See  Lowndes  v.  Taylor,  1  Russ.  R.  158,  ju  which  the  decision  in 
Madd.  R.  423  ;  S.C.2  Rose  R.  365,  S.  C.  reported  5  Madd.  428,  was  over- 
432.  It  seems  a  plea  of  the  plain-  ruled;  a.v\d  see  Ocklestone  v.  Benson, 
tiff's  bankruptcy  must  be  upon  oath.  2  Sim.  &  Stu.  265. 

^  Joseph  V.  Tvckey,  2  Cox  R.  44-     See 

(1)  This  incapacity  has  been  abolished  by  the  stat.  10  Geo.  IV.  c. 
7,  s.  23. 

(2)  [See  the  form  of  a  plea  of  bankruptcy  of  the  complainant,  Wil- 
lis, 519.  A  plea  that  the  complainant  has  taken  the  benefit  of  an  act 
for  the  relief  of  insolvent  debtors,  is  to  be  found  in  De  Minckwilt  v. 
Vdney,  16  Ves.  467.] 


S.    II.  p.  II.]  PLEAS.  874 

common  law  (q).  "But  if  a  plea  goes  to  show  that 
no  title  was  ever  vested  in  the  plaintiff,  though  for 
that  purpose  it  states  an  offence  committed,  con- 
viction of  the  offence  is  not  essential  to  the  plea, 
and  the  same  strictness  is  not  required  as  in  a  case 
of  forfeiture.  Thus,  in  the  exchequer,  to  a  bill  seek- 
ing a  discovery  of  the  owners  of  a  ship  captured* 
and  payment  of  ransom,  the  defendants  pleaded 
that  the  captor  was  a  natural-born  subject,  and 
the  capture  an  act  of  piracy.  Though- the  barons 
at  first  thought  that  the  plea  could  not  be  support- 
ed unless  the  plaintiff  had  been  convicted  of  piracy, 
and  the  record  of  the  conviction  had  been  annexed 
to  the  plea,  they  were  finally  of  opinion  that  as  the 
plea  showed  that  the  capture  was  not  legal,  and 
that  therefore  no  title  had  ever  been  in  the  plaintiff, 
the  plea  was  good,  and  they  allowed  it  according- 
ly (r).  Pleas  of  want  of  title  generally  extend  to 
discovery  as  well  as  to  relief  (s). 

It  cannot  often  be  necessary  to  make  defence 
on  this  ground  by  way  of  plea  ;  for  if  facts  are  not 
stated  in  the  bill  from  which  the  court  will  infer  a 
title  in  the  plaintiff,  though  the  bill  does  contain  an 
assertion  that  the  plaintiff  has  a  title,  the  defendant 
may  demur  ;  the  averment  of  title  in  the  bill  being  275 

not  of  a  fact,  but  of  the  consequence  of  facts. 
Thus,  where  a  plaintiff  stated  an  incumbrance  on 
a  real  estate,  of  which  he  was  devisee,  and  averred  [234] 
that  it  was  the  debt  of  the  testator,  and  prayed 
that  it  might  be  paid  out  of  the  testator's  personal 
estate  in  case  of  the  real  estate  devised,  the  de- 

(q)  2  Atk.  399.  (»)  Gilb.  229. 

.  (r)  Fallv. ,  iBt  May,  1782. 


275  PLEAS,  [Chap.  II, 

fendant  having  pleaded  that  the  testator  had  done 
no  act  by  which  he  made  it  his  own  debt,  the  plea 
was  overruled,  because,  whether  it  was  his  debt  or 
not  was  matter  of  inference  from  the  facts  stated 
<»  in  the   bill,  and  therefore  the  proper  defence  was 

by  demurrer  (t).     Accordingly  the  defendant  af- 
terwards   denmrred,    and    the    demurrer   was  al- 
lowed (u). 
yi.wantofpri-      VI.  lu  treatiuff  of  demurrers  notice  has  been 

Tity  betweenthe  o 

fendi^t*"*^  ^^'  taken  that  though  a  plaintiff  has  an  interest  in  the 
subject  of  a  suit,  and  a  right  to  institute  a  suit  con- 
cerning it,  yet  he  may  have  no  right  to  call  upon 
the  defendant  to  answer  his  demands  ;  and  it  has 
been  observed,  that  this  happens  where  there  is  a 
want  of  privity  of  title  between  the  plaintiff  and 
defendant  (a:).  It  would  probably  be  difficult  to 
frame  a  bilt  which  was  really  liable  to  objection  on 
this  head  so  artfully  as  to  avoid  a  demurrer.  But 
if  such  a  bill  could  be  framed  it  should  seem  that 
defence  might  be  made  by  plea. 
fend^^fifnot"  VII.  A  plea  that  the  defendant  is  not  the  person 
aife|edtobe?OT  hc  is  allcgcd  to  be,  or  does  not  sustain  the  charac- 

doesnot  sustain  i-ii'ii  i  i-  •  i 

the  character    tcr  whicli  lic  IS  alleDfed  to  bear,  is  mentioned  as  a 

which  he  is  al-  " 

^ged  to  bear.  p|g^  wliich  may  bc  supported  (t/).  It  seems  to  have 
been  considered  as  more  convenient  for  a  defend- 
ant under  these  circumstances  to  put  in  an  answer 
alleging  the  mistake  in  the  bill,  and  praying  the 
judgment  of  the  court  whether  he  should  be  com- 

(0   Tweddell  v.   Tveddell,    25th     Carroll  \.M'aring,'i  Gill  &,  John- 
May,  1784,  in  Chattcery.  son,  491.] 

(u)  Sam©  cause,  18th  July,  1786.  (y)  Prac.    Reg.    326;     Wy.    Ed. 

(x)  See  above,  p.  184.     [And  see     And  see  Griffith  v.  Baiema iiiFinck 

R.334. 


[235] 


S.  II.  p.  II.]  PLEAS.  276 

pelled  further  to  answer  the  bill  (y),  but  this  in  fact 
amounts  to  a  plea,  thougii  it  may  not  bear  the  title; 
and  a  plea  has  been  considered  as  the  proper  de- 
fence (z)  (1). 

VIII.  If  a  defendant  has  not  that  interest  in  the  vm.  wam  of 

interest  in  the 

subject  of  a  suit  which  can  make  him  liable  to  the  defeudant. 
demands  of  the  plaintift' (2),  and  the  bill  alleging 
that  he  has  or  claims  an  interest  avoids  a  demur- 
rer, he  may  plead  the  matter  necessary  to  show 
that  he  has  no  interest  {a),  if  the  case  is  not  such 
that  by  a  general  disclaimer  he  can  satisfy  the 
suit(i).     Thus,  where  a  witness   to  a  will   was  277 

made  a  defendant  to  a  bill  brought  by  the  heir  at 
law  to  discover  the  circumstances  attending  the 
execution,  and  the  bill  contained  a  charge  of  pre- 
tence of  interest  by  the  defendant,  though  a  de- 
murrer for  want  of  interest  was  overruled  because 
it  admitted  the  truth  of  the  charge  to  the  contrary 
in  the  bill,  yet  the  court  declared  an  opinion  that  a 
defence  might  have  been  made  by  a  plea  (6-). 

IX.  Though  the  subject  of  a  suit  may  be  within 

(y)  Gary  Rep.  61  ;  Prac.  Reg.  327,  p.  294,  note. 

Wy.  Ed ;  Att.  Gen.  v.  Lord  Hotham,  (a)  Plummer  v.  May,  1  VeB.  426. 

1  Turn.  R.  209.     See  below,  Chap.  (6)  See    the    case    of  Turner  v. 

II.  sect.  2,  part  3.  Robinson,  1  Sim.  &  Stu.  3. 

(z)  1  Ves.  Jun.  292,  and  see  ibid.  (c)  Plummer  v.  May,  1  Ves.  426. 

(1)  Where  a  creditor  of  a  testator  files  a  bill  stating  that  the  defen-  piea  that  the  de- 
dant  is  the  executor,  and  had  proved  the  will,  and  that  he  sets  up  a  vol-  ex°ciUor.   *** 
untary  assignment  made  by  the  testator  to  him  ;  and  charging  that 

whether  he  has  proved  the  will  or  n;'t,  he  has  taken  possession  of  the 
personal  estate,  and  is  accountable  fnr  the  same  ;  and  praying  that  the 
deed  may  be  declared  to  be  void,  and  that  an  account  may  be  taken  of 
the  personal  estate  come  to  the  handpi  of  the  defendant;  a  plea  that 
the  defendant  is  not  executor  is  a  goid  plea  to  the  whole  bill,  llill  v. 
Neale,  6  Law  J.  (O.  S.)  144,  V.  C. 

(2)  A  plea  of  a  defective  title  by  a  vendor  to  a  bill  filed"  by  a  pur-  uo^by  Vvondo'r 
chaser  fur  a  Fpecific  performauce  is  bad.     Thomas  v,  Derin>r,  4  Law  J- 

(N.  S.)  149,  ^].  U. 


277  PLEAS.  [Chap.  II. 
[236]     the  jurisdiction  of  a  court  of  equity,  and  the  court 

IX.  Want  ol  title       r       i  i  .1  ••!•.• 

to  the  relief  01  chanccry  may  have  the  proper  jurisdiction ; 
though  the  plaintiff  may  be  under  no  personal  dis- 
ability, and  may  be  the  person  he  pretends  to  be, 
and  have  a  claim  of  interest  in  the  subject,  and  a 
right  to  call  on  the  defendant  concerning  it,  and 
the  defendant  maybe  the  person  he  is  stated  to  be, 
and  may  claim  an  interest  in  the  subject  which 
may  make  him  liable  to  the  plaintiff's  demands, 
with  respect  to  which  circumstances  pleas  have 
been  already  considered,  still  the  plaintiff,  by  reason 
of  some  additional  circumstance,  may  not  be  enti- 
tled in  the  whole  or  in  part  to  the  relief  or  assist- 
ance which  he  prays  by  his  bill.  The  objections 
which  may  be  made  to  the  whole  or  any  part  of  a 
suit,  though  liable  to  none  of  the  objections  before 
considered,  are  principally  the  subject  of  those 
kinds  of  pleas  which  are  commonly  termed  pleas 

Division  of  pleas  in  bar;  and  which  are  usually  ranked  under  the 

278  heads  of  pleas  of  matter  recorded,  or  as  of  record, 
in  the  court  itself,  or  some  other  court  of  equity; 
pleas  of  matters  of  record,  or  matters  in  the  nature 
of  matters  of  record,  in  some  court  not  a  court  of 
equity :  and  pleas  of  matters  in  pais. 

Pleas  of  matters      Plcas  in  bar  of  matters  recorded,  or  as  of  record, 

recorded  or  as     .  ,  •  1  r»  i  n  • 

of  record  in  the  m  tlic  court  itscli,  Or  somo  other  court  oi   equity, 

court  itself,  or  in  . 

'o^  of  Equity,  "^^y  ^®'  ^'  ^  decree  or  order  of  the  court  by  which 
the  rights  of  the  parties  have  been  determined  (d)  (1), 

This  must  h&ve  been  a  negative  plea.  550 ;   Turner  v.  Robinson,  1  Sim.  3c- 

And   see    Cartwright  v.  Hately,  3  Stu.  3. 

Bro.  C.  C.  238  ;  S.  C.  1  Ves.  Jun.        {d)  3  Atk.  626. 

292 ;  7  Ves.  289,  290 ;  1  Ves.  &  Bea. 

(1)  [See  the  form  of  a  plea  of  a  decree,  Willis,  629.]  The  settled 
law  of  all  courts  is,  that  as  a  general  rule,  a  fact  that  has  been  directly 
tried  and  decided  by  a  court  of  competent  jurisdiction  cannot  be  con- 
tested again  between  the  same  parties  in  the  same  or  any  other  court. 


S.  II.  p.  II.]  PLEAS.  278 

or  another  bill  for  the  same  cause  dismissed  (e)  (1) ; 

2.  Another  suit  depending  in  the  court,  or  in  some 

other  court  of  equity,  between  the  same  parties  for     [237] 
the   same   cause  (  f )  (3).      Pleas   of  this   nature 

(e)  Pritman  v.  Pritman,  1  Veru.  (/)  Foster  v.  Vassall,Z  Atk.  587. 
310;  1  Atk.  571. 

Hence  a  verdict  or  judgment  of  a  rourt  of  record  or  a  decree  in  chan- 
cery, although  not  binding  on  strangers,  puts  an  end  to  all  further  con- 
troversy concerning  the  points  thus  decided,  between  the  parties  to 
such  suit.  In  this  there  is  and  ought  to  be  no  difference  between  a 
verdict  and  judgment  in  a  court  of  common  law  and  decree  in  equity. 
They  both  stand  on  the  same  footing.  Bank  of  U.  S.  v.  Beverley,  1 
Howard's  R.  148-9,  134.  A  prior  decree  must  be  pleaded  or  relied  on 
and  set  forth  in  answer,  showing  the  same  points  in  issue,  or  that  the 
rights  now  set  up  have  been  conclusively  determined,  and  hence  in 
support  of  a  plea  of  former  decree  it  is  necessary  to  set  forth  so  much 
of  the  fir^t  bill  and  answer  as  will  show  the  same  point  was  then  in 
iseue.     Lockwood  et  al.  v.  Wildman  et  al„  13  Ohio  R.  450-1,  430. 

The  doctrine  in  Aspden  v.  Nixon,  4  Howard,  467,  4'j7,  is,  that  the 
decree  or  judgment  must  have  been,  1.  by  a  court  of  competent  juris- 
diction upon  the  same  subject  matter ;  2.  between  the  same  parties ; 

3.  for  the  same  purpose. 

In  Matthews  v.  Roberts,  1  Green's  C.  R.  340-1,  338,  held,  that  a  for- 
mer decree  need  not  appear  as  between  the  same  parties  if  for  the 
same  subject  matter.  But  if  not  for  the  same  subject  matter  one  can 
be  no  bar  to  the  other.  But  if  the  defendant  has  a  substantial  defence, 
which  cannot  avail  him  from  the  inaccurate  manner  in  which  his  plea 
is  drawn,  he  may  claim  the  full  benefit  of  it  by  an^iwer,  and  on  overru- 
ling the  plea  with  costs,  time  will  be  allowfed  to  answer.     Ibid. 

(1)  The  judicial  power  is  incompetent  to  revise  the  evidence  on 
which  tire  decree  [of  dismission]  was  rendered,  on  any  ground  other 
than  that  set  up  in  the  answer,  or  apparent  on  the  present  record,  and 
they  must  be  taken  to  be  (as  now  set  up  in  answer,  or  apparent  on  the 
present  record)  beyond  all  controversy  in  this  or  any  future  case  between 
the  parties.     Bank  of  U.  S.  v.  Beverly,  1  Howard's  R.  148-9,  134. 

(2)  [Saunders  v.  Frost,  5  Pickering's  R.  276,  See  the  form  of  such 
a  plea,  Willis,  634.]     See  p.  287,  ni/ra. 

But  if  the  judgment  of  a  court  of  competent  jurisdiction  is  reversed, 
the  party  is  not  precluded  from  a  new  action.  The  mere  reversal  of  a 
decree  has  not  the  legal  efficacy  of  a  subsisting  decree  on  the  merits. 
A  reversal  with  few  exceptions  affirms  nothing  but  its  own  correctness. 
It  simply  nullifies  the  former  judgment  or  decree.  It  decides  nothing 
upon  the  rights  of  parties,  but  confines  itself  to  the  adjudication  that 
what  has  been  done  shall  have  no  legal  effect.     Thus  where  the  decree 


278  PLEAS.  [Chap.  IL 

generally  go  both  to  the  discovery  sought  and  the 
relief  prayed  by  the  bill. 
ereJ^Bi^edand  A  decree  (1),  determining  the  rights  of  the  par- 
ties, and  signed  and  enrolled,  may  be  pleaded  to 
a  new  bill  for  the  same  matter  (  g),  and  this  even 
if  the  party  bringing  the  new  bill  was  an  infant  at 
the  time  of  the  former  decree  (A) :  for  a  decree  en- 
rolled can  only  be  altered  upon  a  bill  of  review  (i). 
But  the  decree  must  be  in  its  nature  final,  or  after- 

279  wards  made  so  by  order,  or  it  will  not  be  a 
bar  (k)  (2).  Therefore  a  decree  for  an  account  of 
principal  and  interest  due  on  a  mortgage,  and  for 
a  foreclosure  in  case  of  non-payment,  cannot  b^ 
pleaded  to  a  bill  to  redeem  unless  there  is  a  final 
order  of  foreclosure  (I) ;  nor  can  a  decree  which  has 

(g-)  Rutland   v.  Brett,   Finch  R.  (,f)  3    Atk.   627.      See    above,   p. 

124;  Mallock  v.  Gallon,  Dick.  65.  101,  et  seq. 

(A)  1  Alk.  631;  Gregory  v.  Moles-  (k)  See  page  280,  notes  (o)  and 

worth,  3  Atk.  626-;  3  Ves.  317.  (p). 

f  (l)  Senkouae  V.  Earl,  2  Wes.  450. 

of  the  Supreme  Court  of  pobate  in  Maeeachusetts  reversed  that  of 
the  inferior  court  decreeing  distribution,  such  reversal  was  held  no  bar 
to  a  subsequent  suit  by  the  parties  claiming  as  heirs  or  legal  represf^n- 
tatives.  A  fortiori,  it  was  no  bar  to  a  bill  in  equity.  Harvey  v.  Rich- 
ards,  2  Gall.  216,  229,  230. 
Plea  of  a  former  (^)  ^  P^®^  *^  *  creditor's  bill,  of  a  decree  obtained  by  other  creditors 
•■it  in  a  former  suit  will  oe  overruled,  where  that  decree  is  less  beneficial 

to  the  plaintiffs  in  the"  second  suit  than  the  decree  they  might  obtain  in 
Buch  second  suit.     Pickford  v.  Hunter,  6  Sim.  122. 

*(2)  [Although  a  decree  cannot  be  pleaded  in  bar  if  it  is  not  enrolled, 
yet,  in  such  a  case,  it  may  be  insisted  on  by  way  of  answer.  Ddvoue 
V.  Fanning,  4  J.  C.  R.  199.  It  will  not  ha  allowed  on  the  hearing, 
unless  set  up  in  the  answer,  or  (if  enrolled)  pleaded.  Lyon  v.  Tall' 
madge,  on  appeal,  14  J.  R.  601.]  In  New-York  the  enrolled  decree 
must  be  signed  by  tie  chancellor  or  vice-chancell  r,  and  also  by  the 
register  or  clerk,  before  it  can  be  filed  so  as  to  authorize  the  issuing  of 
an  execution  thereon ;  and  it  i^  irregular  to  file  it  without  such  bigna- 
tures.     Bank  of  Rochester  v.  Emerson,  10  Paige's  Ch,  R.  359. 

Where  the  decree  gives  all  t'  e  consequential  directions,  so  as  finally 
to  dispose  of  the  whole  case  upon  the  coming  in  and  confirmation  of  the 


S.  II.  p.  II.]  PLEAS.  279 

been  made  upon  default  of  the  defendant  in  not 
appearing  at  the  hearing  be  pleaded  without  an 
order  making  the  decree  absolute ;  the  terms  of 
such  a  decree  being  always  that  it  shall  be  binding 
on  the  defendant,  unless,  on  being  served  with  a 
writ  of  subpoena  for  the  purpose,  he  shall  show 
cause  to  the  contrary  (?//).  Upon  a  plea  of  this 
nature  so  much  of  the  former  bill  and  answer  must 
be  set  forth  as  is  necessary  to  show  that  the  same  [238] 
point  was  then  in  issue  (n).  A  decree  of  order  dis- 
missing a  former  bill  for  the  same  matter  may  be 
pleaded  in  bar  to  a  new  bill  (o)  (1)  if  the  dismis- 
sion was  upon  hearing,  and  was  not  in  terms  direct- 
ed to  be  without  prejudice  (/?).  But  an  order  of 
dismission  is  a  bar  only  where  the  court  determined  280 

that  the  plaintiff  had  no  title  to  the  relief  sought 
by  his  bill;  and  therefore  an  order  dismissing  a 
bill  for  want  of  prosecution  is  not  a  bar  to  another 
bill  (q).     And  a  decree  cannot  be  pleaded  in  bar 

(»/))  Ord.  in  Clia.  198;    Ed.  Bea.  Peterborough  v.   Germaiiie,  6   Bro. 

And  see  Halsey  v.  Stnith.Moa.  186  ;  P.  C.  1,  Toml.  Ed. 
Venemore  v.  Venemore,  Dick.  93.  (p)  Seymour  v.  Nositorthy,  1  Ca. 

(n)  ^hild  V.  Gibson,  2  Atk.  603.  in  Cha.  155 ;  Toth.  50.     [S.  P.  Pe- 

But  see  1  Vern.  310.  rine  v.  Dunn,  4  J.  C.  R.  140 ;  Holmes 

(o)  Prilman  v.  Pritmnn,  1  Vern.  v.  Remsen,  7  lb.  286.] 
310;  Madge  v.  Brett,  Finch.  R.  46;         (q)  Brandlyn  v.  Ord,  1  Atk.  571; 

Conneil  v.  Warren,  rb.  239  ;  Earl  of  14  Ves.  232. 

master's  report,  by  a  common  order  in  the  register's  office,  without  the 
neces.sity  of  bringing  the  case  again  before  the  court  for  any  further 
decree  or  direction,  it  is  a  final  and  not  an  interlocutory  decree ; 
although  further  proceedings  must  be  had  in  the  master's  office  to  carry 
tlie  decree  of  the  court  into  effect.  Quackenbush  v.  Leonard,  10 
Paige's  Ch.  R.  131. 

[Lijon  V.    Tallmadge,  on  appeal,  14  J.  R.  601.] 

(1  j  Where  a  demurrer  by  one  of  tlie  assignees  of  a  bankrupt  to  a  pica  by  one  a»- 
bill  a-:ainst  the  assignees  for  a  general  account  of  their  dealings  under  f's^*^"  "^  V'^j*'' 
the  bankruptcy  has  been  allowed,  it  may  be  pleaded  by  the  other  assig-  murrer  by  ano- 
nee  in  bar  of  the  suit.     Tarleton  v.  Hornby,  1  Y.  &.  C.  Eq.  Ex.  333. 

[It  must  be  an  absolute  decision  upon  the  same  point  or  matter,  and 


[239] 


280  PLEAS.  [Chap.  IL 

of  a  new  bill  unless  it  is  conclusive  (o)  of  rights  of 
the  plaintiffs  in  that  bill,  or  of  those  under  whom 
they  claim  (  p).  Therefore  a  decree  against  a  mort- 
gagor, and  order  of  foreclosure  enrolled,  were  not 
deemed  a  bar  to  a  bill  by  intervening  incumbrancers 
to  redeem,  although  the  mortgagee  had  no  notice 
of  those  incumbrances;  and  the  mortgagee  having 
been  long  in  possession,  the  account  taken  in  the 
former  cause  was  not  deemed  conclusive  against 
the  plaintiffs  in  the  new  bill,  though  under  the  cir- 
cumstances the  court,  on  overruling  the  plea  and 
ordering  the  defendant  to  answer,  limited  the  order 
by  directing  that  the  defendant  should  answer  to 
charges  of  errors  or  omissions,  but  that  the  plain- 
tiffs should  not  unravel  the  account  at  large  before 
the  hearing  (q)-    . 

A  decree  must  be  signed  and  enrolled,  or  it  can- 
not be  pleaded  in  bar  of  a  suit  (r),  though  it  may 
be  insisted  upon  by  way  of  answer  (s).     But  though 
go-i  it  cannot  be  pleaded  directly  in  bar  of  the  suit  for 

want  of  enrolment,  it  may  perhaps  be  pleaded,  to 
show  that  the  bill  was  exhibited  contrary  to  the 
usual  course  of  the  court,  and  ought  not  therefore 
to  be  proceeded  upon  (t).     For  if  the  decree  ap- 

(o)  See  Coysgarne  V.  Jones,  Amh\.  1710,  in  Ch.  reported  2  Vern.  663. 

613;  Collins  v.Gough,-iGw\\n.C.  (r)  Anon.  3  Atk.  809;    Kinsey  v. 

1294.  Kinsey,  2  Vee.  577.  4  J.  C.  R.  199. 

(/))  See   Doyly   v.  Smith,  2    Ca.  (s)  2  Ves.  577.  And  see  Charles  v. 

in  Ch.  119  ;  Godfrey  v.  Chadwell,  2  Rowley,  2  Bro.  P.  C.  485,  Toml.  Ed. 

Vern.  601;  Atkinson  v.   Turner,  3  Lyon  v.  Talmadge,  14  John.  R. 501. 

Barnard,  74.  (0  See  2  Ves.    577,  note ;  Chan> 

(5)  Morrett  v.  Western,  15  July,  Pleas,  89. 

the  new  bill  must  be  brought  by  the  same  complainant  who  filed  the 
original  bill  or  his  representatives,  against  the  same  defendant  and  his 
representatives.  If  the  defendant  in  the  original  suit,  having  since 
acquired  a  legal  estate  or  legal  advantage,  files  his  bill  against  the  for- 
mer complainant,  the  cause  is  open  on  its  merits.  Neajie  v.  Neajie,  7 
J,C.  R.  1] 


S.  II.  p.  II.]  PLEAS.  281 

peared  upon  the  face  of  the  bill,  the  defendant 
might  demur  (u),  a  decree  not  signed  and  enrol- 
led being  to  be  altered  only  upon  a  re-hearing  (x), 
as  a  decree  signed  and  enrolled   can  be  altered    ,  ^vhctherm. 

O  plea  to  a  bill  to 

only  upon  a  bill  of  review  (?/).  '^^rt  l.ti. 

If  a  bill  is  brought  to  impeach  a  decree  on  the  ativi"gThefr°au^d 
ground  of  fraud  used  in  obtaining  it,  which,  as  has 
been  observed  (z),  may  be  done  without  the  pre- 
vious leave  of  the  court,  the  decree  may  be  pleaded 
in  bar  of  the  suit,  with  averments,  negativing  the 
charges  of  fraud,  supported  by  an  answer  fully  de-  [240] 
nying  them  (a).  Whether  averments  negativing 
the  charges  of  fraud  are  necessary  to  a  plea  of  this 
description  appears  to  have  been  a  question  much 
agitated  in  recent  cases  (&)  ;  upon  which  it  may  be 
observed,  that  without  such  averments,  if  the  decree 

(u)  Worthy  v.  Birkhead,  3  Atk.  the  cases  of  Sidney  v.  Perry,  Park- 

809  ;  S.  C.  2  Ves.  571 ;  Lady  Gran-  inson  v.  Lecrds,  Meadows  v.  Duch- 

ville  V.  Ramaden,  Bunbury,  56.  ess  of  Kingston,  and  Deciev.  Ckes- 

(x)  2  Ves.  598.      See  above,  pp.  fer,  mentioned  in  pages  289, 297, 300, 

108,  109.  306, 321.    And  see  6  Ves.  59(; ;  2  Scli. 

(y)  Read  v.  Hambey,  1  €a.  in  Cha.  &-  Lefr.  727  ;  5  Madd.  330 ;  6  Madd. 

44 ;  S.  C.  2  Fieem.  179.     See  above,  64  (I). 
p.  278  note  (A)-  (6)  Pope  v.  Bish,  1  Anstr.   Exch. 

(2)   Pages  112,  113.  R.  69;    Edmundson  v.  Hartley,  ib. 

(a)   Wzc/iuise  V.  SAorf,  3  Bro.  P.  C(.  97.     And  see  Bayley  v.  Adams,  6 

558,  Toml.    Ed. ;    S.  C.  2  Eq.  Ca.  Ves.  Jun.  586.     In  the  cases  in  the 

Abr.  177,  and  7  Vin.  Abr.  398,  pi.  court  of  exchequer  it  seems  to  have 

15  ;  3  P.  Wms.  95  ;  Gilb.  For.  Rom.  been  supposed  that  the  answer  in  sup- 

58 ;    Treatise   on    Frauds,  c.   18,  p.  port  of  the  plea  overruled  the  plea. 

220  ;  J?w<c/(frv.  Co/e,  at  the  Rolls,  26  But  an  answer  can  only  overrule  a 

June,  1786,  cited  1  Anstr.  99.     See  plea  where  it  applies  to  matter  which 


(1)  [Allen  V.  Randolph,  4  J.  C.  R.  693,  Where  a  bill  -charped  mis- 
representation, Coercion  and  fraud  in  procuring  the  release  of  a  debt, 
and  the  defendant  put  in  a  plea  and  answer;  and  in  Jiia  plea  insisted 
on  the  release  in  bar,  without  noticini;  the  allegation  of  fraud,  though 
in  the  answer  it  was  fully  met  and  denied  : — Held,  that  the  plea  was 
bad.    Allen  V.  Randolph,  sujra.] 


282  PLEAS.  [Chap.  II. 

were  admitted  by  the  bill,  nothing  would  be  put 
in  issue  by  the  plea.  The  question  in  the  cause 
must  be,  not  whether,  such  a  decree  had  been 
made,  but  whether,  such  a  decree  having  been 
made,  it  ought  to  operate  to  bar  the  plaintiff's 
demand.  To  avoid  its  operation  the  bill  must  al- 
lege fraud  in  obtaining  it  ;  and  to  sustain  it  as  a 
bar  the  fact  of  fraud  must  be  denied  and  put  in 
issue  by  the  plea.  For  upon  the  question,  whether 
the  decree  ought  to  operate  as  a  bar,  the  fact  of 
fraud  is  the  only  point  upon  which  issue  can  be 
joined  between  the  parties  ;  and  unless  the  plea 
covers  the  fact  of  fraud,  it  does  not  meet  the  case 
made  by  the  bill ;  and  on  argument  of  the  plea,  the 
charge  of  fraud,  not  being  denied  by  the  plea,  must 
be  taken  to  be  true.  If  the  bill  states  the  decree 
[241]  only  as  a  pretence  of  the  defendant,  which  it  avoids 
by  stating,  that  if  any  such  decree  had  been  made 
*  it  had  been  obtained  by  fraud,  the  decree  must  be 

pleaded,  because  the  fact  of  the  decree  is  not  ad- 

the  defendant  by  his  plea  declines  to  ought  to  be  compelled  to  answer  so 

answer  (1);    demanding  the  judg-  much  of  the  bill.     Sae  Arnold's  case, 

ment  of  the  court,  whether  by  reason  Gilb.  For.  Rom.  59  (2). 
of  the  matter  stated  in  the  plea  he 

(1)  By  the  37th  order  of  Aug.  1841,  "  No  plea  shall  be  held  bad  and 
overruled  upon  argument  only  because  the  answer  of  the  defendant 
may  extend  to  some  part  of  the  same  matter  as  may  be  covered  by 
such  plea." 

(2)  \_BoUon  V.  Gardner,  3  Paige's  C.  R.  273.  The  only  exception 
to  tliis  rule,  is  the  case  where  the  answer  is  necessary  to  support  the 
plea,  as  where  the  bill  charges  circumstances  calculated  to  avoid  the 
anticipated  bar  of  the  defendant.  There,  it  is  proper,  not  only  that  the 
plea  should  contain  all  necessary  averments  to  remove  those  circum- 
stances out  of  the  way,  but  the  defendant  must  support  the  plea  by 
an  answer  also  denying  the  circumstances.  Ferguson  v.  O^IIara,  I 
Peters'  C.  C.  R.  493.] 


283 


S.  II.  P.  II.]  PLEAS.  282 

mitted  by  the  bill  ;  and  the  charge  of  fraud  must 
also  be  denied  by  the  plea  for  the  reasons  before 
stated.  If  the  bill  states  the  decree  absolutely,  but 
charges  fraud  to  impeach  it,  yet  the  decree  must 
be  pleaded,  because  the  decree  if  not  avoidable  is 
alone  the  bar  to  the  suit ;  and  the  fraud  by  which 
the  bar  is  sought  to  be  avoided  must  be  met  by 
negative  averments  in  the  plea,  because  without 
such  averments  the  plea  would  admit  the  decree 
to  have  been  obtained  by  fraud,  and  would  there- 
fore admit  that  it  formed  no  bar.  When  issue  is 
joined  upon  such  a  plea,  if  the  decree  is  admitted 
by  the  bill,  the  only  subject  upon  which  evidence 
can  be  given  is  the  fact  of  fraud.  If  that  should 
be  proved,  it  would  open  the  plea  on  the  hearing 
of  the  cause  ;  and  the  defendant  would  then  be  put 
to  answer  generally,  and  to  make  defence  to  the  bill 
as  if  no  such  decree  had  been  made.  The  object 
of  the  plea  is  to  prevent  the  necessity  of  entering 
into  that  defence  by  trying  first  the  validity  of  the 
decree.  If  the  evidence  of  fraud  should  fail,  the 
decree,  operating  as  a  bar,  would  determine  the 
suit  as  far  as  the  operation  of  the  decree  would 
extend. 

It  has  also  been  objected,  that  a  plea  of  the  de- 
cree is  a  plea  of  the  matter  impeached  by  the  bill ; 
but  the  frame  of  a  bill  in  equity  necessarily  produ- 
ces, in  various  instances,  this  mode  of  pleading  (c).  [242] 
If  the  bill  stated  the  title  under  which/hc  plaintiff 
claimed,  without  stating  the  decree  by  which  it  had 

(c)  See  3  P.  Wins.  317,  where  objected  to  this  mode  of  pleading, 
Lord  Chancellor  Talbot  is  stated  to  observing  that  it  was  every  day's 
have  interrupted  the    counse],  who     practice. 

24 


888  PLEAS.  [Chap.  11. 

been  affected,  the  defendant  might  have  pleaded 
the  decree  alone  in  bar.     If  the  bill  stated  the 
284  plaintiff's  title,  and  also  stated  the  decree,  and  al- 

leged no  fact  to  impeach  it,  and  yet  sought  relief 
founded  on  the  title  concluded  by  it,  the  defendant 
might  demur ;  because  upon  the  face  of  the  bill 
the  title  of  the  plaintiff  would  appear  to  be  so  con- 
cluded. But  as  in"  the  form  of  pleading  in  equity 
the  bill  may  state  the  title  of  the  plaintiff,  and  at 
the  same  time  state  the  decree  by  which,  if  not  im- 
peached, that  title  would  be  concluded,  and  then 
avoid  the  operation  6C  the  decree  by  alleging  that 
it  had  been  obtained  by  fraud  ;  if  the  defendant 
could  not  take  the  judgment  of  the  court  upon  the 
conclusiveness  of  the  decree  by  plea  upon  which 
the  matter  by  which  that  decree  was  impeached 
would  alone  be  in  issue,  he  must  enter  into  the  same 
defence  (by  evidence  as  well  as  by  answer)  as  if 
no  decree  had  been  made  ;  and  would  be  involved 
in  all  the  expense  and  vexation  of  a  second  litiga- 
tion on  the  subject  of  a  former  suit,  which  the  de- 
cree, if  unimpeached,  had  concluded.  It  is  there- 
fore permitted  to  him  to  avoid  entering  into  the 
general  question  of  the  plaintiff's  title  as  not  affected 
by  the  decree,  by  meeting  the  case  made  by  the 
[243]  plaintiff,  which  can  alone  give  him  a  right  to  call 
for  that  defence,  namely,  the  fact  of  fraud  in  ob- 
taining the  decree.  This  has  been  permitted  to  be 
done  in  the  only  way  in  which  it  can  be  done,  by 
pleading  the  decree  with  averments  denying  the 
fraud  alleged  ;  and  those  averments  being  the  only 
matter  in  issue,  they  are  necessarily  of  the  very 
substance  of  the  plea.  The  decree  if  obtained  by 
fraud  would  be  no  bar ;  and  nothing  can  be  in  issue 


S.  11.  p.  II.]  PLEAS.  284 

on  a  plea  but  that  which  is  contained  in  the  plea  ;  285 

and  every  charge  in  the  bill  not  negatived  by  the 
plea  is  taken  to  be  true  on  argument  of  the  plea. 
If  therefore  the  decree  merely  were  pleaded,  on 
argument  of  the  plea,  the  charge  of  fraud  must  be 
taken  to  be  true,  and  the  plea  ought  therefore  to 
be  overruled  ;  but  if  on  argument  the  plea  were  al- 
lowed, or  if  the  plaintiff,  without  arguing,  replied 
to  the  plea,  no  evidence  could  be  given  on  the 
charges  of  fraud  to  avoid  the  plea,  and  the  defend- 
ant proving  his  plea  (d),  that  is,  proving  the  decree 
and  nothing  more,  would  be  entitled  to  have  the 
bill  dismissed  at  the  hearing  (e). 

As  the  averments  negativing  the  charges  of  fraud       [244] 
are  used  merely  to  put  the  fact  of  fraud,  as  alleged  Kve^e^^ti!* 
by  the  bill,  in  issue  on  the  plea,  they  may  be  ex- 
pressed in  the  most  general  terms,  provided  they 
are  sufficient  to  put  the  charges  of  fraud  contained 
in  the  bill  fully  in  issue.     And  as  the  plaintiff  is  en-  "^^Tof'the  uS! 
titled  to  have  the  answer  of  the  defendant  upon  ^'^ 
oath  to  any  matter  in  dispute  between  them,  in  aid 

(d)  Sir  Joseph  Jekyll,  M.  R.  3  P.  decree  ;  if  the  defendant  pleaded  a 
Wms.  95.  decree  binding  the  right,  the  plaintiff 

(e)  Perhaps  all  the  difficulties  might  liave  rephed,  that  the  decree 
which  have  arisen  upon  this  subject  had  been  obtained  by  fraud,  by  which 
have  proceeded  from  want  of  atten-  the  plaintiff  would  have  admitted 
tion  to  the  form  of  pleadings  in  courts  that  the  decree  was  a  bar,  if  not  ca- 
of  equity,  especially  since  the  disuse  pable  of  impeachment  on  the  ground 
of  special  replications,  rejoinders,  sur-  of  fraud  ;  the  defendant  by  rejoinder 
rejoinders,  &c.  When  those  plead-  would  have  avoided  the  charge  of 
ings  were  allowed,  the  plaintiff  might  fraud,  and  sustained  Iho  decree  ;  and 
have  stated  his  case,  without  suggest-  then  the  issue  would  havo  been  sim- 
ing  that  it  had  been  affected  by  any  ply  on  the  fact  of  fraud. 

(1)  When  complainant  states  a  variety  of  matters  wliich,  if  admit- 
ted as  true,  would  be  evidence  to  counterprove  the  allegations  in  the 
plea,  (as  in  this  case  allegations  of  an  adverse  entry  under  claim  of 
title  and  of  an  adverse  holding}  it  becomes  necessary  to  negative  those 


285  PLEAS.  [Chap.  II. 

of  proof  of  the  case  made  by  the  bill,  the  defend- 
ant must  answer  to  the  facts  of  fraud  alleged  in  the 

286  bill  so  fully  as  to  leave  no  doubt  in  the  mind  of  the 
court  that  upon  that  answer,  if  not  controverted  by 
evidence  on  the  part  of  the  plaintiff,  the  fact  of 
fraud  could  not  be  established  (/).  If  the  answer 
should  not  be  full  in  all  material  points,  the  court 
may  presume  that  the  fact  of  fraud  may  be  capable 
of  proof  in  the  point  not  fully  answered,  and  may 
therefore  not  deem  the  answer  sufficient  to  sup- 
port the  V  plea  as  conclusive,  and  therefore  may 
overrule  the  plea  absolutely,  or  only  as  an  imme- 
diate bar,  saving  the  benefit  of  it  to  the  hearing  of 
the  cause.  But  though  the  answer  may  be  deemed 
sufficient  to  support  the  plea  upon  argument,  the 
plaintiff  may  except  to  the  answer,  if  he  conceives 
it  not  to  be  so  full  to  all  the  charges  as  to  be  free 

[245]  from  exception;  or  by  amending  his  bill  may  re- 
quire an  answer  to  any -matter  which  may  not  have 
been  so  extensively  stated  or  interrogated  to  as 

(/)  It  seems  to  have  been  ima-  part  of  the  defence,  but  that  evidence 

gined  that  there  was  something  incon-  which  the  plaintiff  has  a  right  to  re- 

gruous  in  a  plea,  and  answer  in  sup-  quire,  and  to  use  to  invalidate  the 

port  of  the  plea,  6  Ves.  597.     But  defence  made  by  the  plea,  upon  argu- 

this  objection  seems  to  have   arisen  ment  of  the  plea,  before  other  evi- 

from  a  supposition  that  the  answer  deuce  can  be  given, 
formed  part  of  the  defence.     It  is  no 

matters  by  general  averments  in  the  plea,  and  to  support  the  plea  by 
answer  as  to  such  matters.  The  plea  is  not  then  double,  (see  hifra 
p.  245,  note.)     Bogardus  v.  Trinity  Church,  4  Paige's  R.  195,  178. 

The  only  way  to  test  the  sufficiency  of  an  answer  in  support  of  a 
plea  where  it  is  objected  that  the  plea  is  not  sufficiently  supported,  ia 
to  consider  every  allegation  in  the  bill  as  true  which  is  not  sufficiently 
denied  by  the  answer;  and  then  to  inquire  whether  those  facts  being 
admitted,  the  plea  Is  a  sufficient  bar  to  the  claim  of  the  complainant 
for  relief.  Such  objection  therefore  necessarily  connects  itself  with 
the  merits  of  the  defence  set  up  in  the  plea  and  must  be  examined  in 
that  connection.     Zdewi  197,  178. 


S.  II.  p.  II.]  PLEAS.  286 

the  case  would  warrant,  or  to  which  he  may  appre- 
hend that  the  answer,  though  full  in  terms,  may 
have  been  in  effect  evasive. 

As  the  bill  must  be  founded  on  the  supposition  ,Jff"»  °f  *« 
that  the  plaintiff's  title  is  not  concluded  by  the 
decree,  and  the  plea  on  the  contrary  supposition, 
the  effect  of  the  plea  is,  to  conclude  the  whole  case 
made  by  the  bill,  so  far  as  it  may  be  concluded  by 
the  decree,  except  the  question  of  fraud ;  and  con-  287 

sequently  all  the  questions  which  might  have  been 
raised,  if  the  decree  had  not  been  made,  are  put 
by  the  plea,  if  allowed,  wholly  out  of  the  cause, 
unless  the  plea  should  be  shown  to  be  false  in  fact 
by  evidence  given  on  the  issue  taken  upon  it,  and 
the  matter  of  the  plea  thus  opened  upon  the  hear- 
ing. It  is  therefore  a  mistake  to  suppose  that  the 
plea,  if  sustained,  would  not  shorten  the  cause,  or 
lessen  expense  (g)  (1). 

As  the  ground  of  this  defence  by  plea  of  a  de-  Decree  of  my 

11  1  11111     peculiar  court  of 

cree  is  that  the  matter  has  been  already  decided,  <^i"'»y 
a  decree  of  any  court  of  equity,  in  its  nature  final 
or  made  so  by  subsequent  order,  may  be  pleaded 
in  bar  of  a  new  siiit  (h). 

(g)  The  argument  wliich  is  con-  tablegrounds,  with  reference  to  which 

tained  in  the  few  preceding  pages  of  they  have  been   respectively  deter- 

the  text,  and  the  notes  theretot  has  mined.     See,  however,  here,  2  Ves. 

been  adopted  and  established  by  de-  «fc  B.  364 ;  6   Madd.  64,  and  2  Sim. 

cided  cases ;  but  these  not  relating  to  &  Stu.  279. 

decrees,  they  will  be  adduced  hero-  {^h)  Geale  v.  Wyntnur,  Buub.  211  ; 

after  in  illustration  of  the   doctriues  Wing\.  Wing,  10  Mod.  102;  Anon. 

relating  to  the  several  pleas  or  legal  Mos.    268  ;  Pritmnn  v.   Piitmnn,   1 

bars  sought  to  be  set  eiside  upon  eqni-  Veru.  310;    Fitzgerald  v.  Fitzger- 

(1)  A  former  decree  pleaded  in  bar  need  not  appear  to  have  been 
between  precisely  the  same  parties  with  the  one  to  which  it  is  pleaded,    • 
but  it  must  always  appear  to  have  been  for  the  same  subjfct  matter. 
Mathews  v.  Roberts,  1  Green's  Ch.  R.  338. 


287  PLEAS.  [Chap.  II. 

[246]         2.  Another  suit  depending  in  the  same  or  another 

Plea  of  another  j        c  • ,       f       .i  /  •\    /t  \    '  J. 

euit  depending,   court  oi  cquity  lor  the  same  cause  (z)  (1)  is  a  gooa 
plea  (k)  (2) ;  except,  perhaps,  in  the  case  of  a  suit 

aid,  5  Bro.  P.  C.  567,  Toml.  Ed.;  (i)  Ord.  in  Cha.  Ed.  Bea.26,  176; 
but,  as  to  the  authority  of  this  par-  Cro/<s  v.  W^ortZey,  1  Ca.  in  Cha.  241 ; 
ticiilar  case,  except  in  principle,  see  Foster  v.  Vassall,  3  Atk.  587  ;  Bell 
Stat.  2.3  Geo.  III.  c.  28,  and  stat.  39  v.  Read,  ibid.  590  ;  Murray  v.  Shad- 
Si,  40  Geo.  III.  c.  67,  art.  8.  See  well,  17  Vee.  353. 
aiso  Pitcher  v.  Righy,  9  Pri.  Ex.  R.  (k)  It  seems,  that  the  pendency  of 
^                      79.  another  suK  for  the  same  cause,  in  a 


(1)  [The  mere  pendency  of  a  suit  in  a  foreign  court,  or  in  a  court 
of  the  United  States,  cannot  be  pleaded  in  abatement  or  in  bar  to  a 
suit  for  the  same  cause  in  a  state  court.  Mitchell  \,  Bunce,  2  Paige's 
C.  R.  606.}  The  court  in  Colt  v.  Pariridge,1  MetchU  R.  (Massa- 
chusetts,) 574-6.  570,  say  that  whether  a  plea  in  abatement,  that 
another  action  between  the  same  parties  and  the  same  cause  is  pend- 
ing in  another  state  is  good,  is  not  decided  m  that  state.  In  New- 
York  such  plea  has  been  held  bad.  Bowne  v.  Joy,  9  Johns.  221 ; 
Walsh  V.  Durkin,  12  Johns.  99.  The  pendency  of  another  action  in 
another  state  will  not  be  a  good  plea,  unless  the  judgment  in  such 
action  will  be  a  bar  to  this.  Newell  v.  Newton,  10  Pick.  470.  The 
plea  in  Colt  v.  Partridge,  stated  no  case  of  an  action  by  the  present 
plaintiff  against  the  present  defendant  pending  in  the  court  of  chan- 
cery in  the  state  of  "Vermont.  '  It  seems  to  the  court  that  if  such  plea 
can  be  sustained  when  the  parties  stand  in  different  relations,  it  can 
only  be  so  when  the  first  suit  affords  a  full,  plain  and  adequate  remedy 
to  the  defendant  in  such  suit,  and  opens  all  the  grounds  set  up  as  the 
foundation  of  the  second  suit.  But  further,  the  suit  in  Vermont  was 
by  bill  and  the  present  at  common  law.  The  pendency  of  a  bill  in 
equity  has  not  usually  been  considered  as  a  sufficient  ground  for  sus- 
taining a  plea,  in  abatement  to  an  action  at  law.  When  both  suits 
were  by  the  same  parly  it  furnishes  occasion  for  motion,  that  party 
elect  which  he  will  first  proceed  in.  In  these  respects  the  plea  in 
abatement  was  regarded  as  insufficient  and  the  demurrer  sustained. 
Ibid.     Colt  V.  Partridge. 

(2)  [See  the  form  of  such  a  plea,  Willis,  534  ;  Beames  on  Pleas,  330  ; 
Equity  Draft.  117.]  It  is  a  rule  of  justice,  applicable  to  all  legal 
proceedings,  that  no  one  shall  be  twice  vexed  for  the  same  cause.' 
The  reason  why  a  second  suit  cannot  be  commenced  for  the  same 
cause,  pending  a  former  is  that  it  is  unnecessary,  inasmuch  as  the 
party  prosecuting  may  have  the  same  remedy  under  the  first,  which 
he  could  obtain  by  prosecuting  another.     Such  was  the  doctrine  in 


S.  II.  p.  II.]  PLEAS.  288 

depending  in  an  inferior  court  of  equity,  the  effect 

court  of  concurrent  equity  jurisdic-  fact,  as  to  the  validity  of  the  plea, 

tion,  cannot,  before  a  decree  has  been  and  consequently  a  determination  of 

made  in  such  other  suit,  be  pleaded  the  question    whether    the  plaintiff 

in  bar.     See  Houlditch  v.  Marquis  of  should  or  should  not   be  allowed  to 

Donegall,  1  Sim.  &  Stu.  491 ;  but,  proceed  in  the  suit  in  which  the  plea 

that  where  the  parties  in  both  courts  has  been  filed.     Barnard,  85.     And 

are  the  same,  it  may  be  pleaded  for  see  on  this  subject  generally,   Urlin 

the  purpose  of  obtaininor  a  reference  v. ,  1  Vern.  332;  1   Ves.  545; 

to  a  master,  to  inquire  whether  the  Daniel  v.  Mitchell,  3  Bro.  C.  C.  544  ; 

suits  are  for  the  same  matter,  [and  Anon.  1  Ves.  Jun.  484;  2  Ves.  &  B. 

see   14  J.   R.  501,]  see    Murray  v.  110;  Jacksm  v.  Leaf,  1  Jac.  &  W. 

Shadwell.  17  Ves.  353,  and  of  get-  229. 
ting  a  decision,  upon  his  report  of  the 

Massachusetts,  on  a  libel  filed  by  a  husband  for  divorce,  a  mensa,  &c., 
for  desertion  under  statute  of  that  commonwealth.  And  pending  that 
libel,  another  statute  authoriz  ^d,  for  such  cause,  a  libel  for  divorce  a  vin- 
culo, &c.  The  pendency  of  the  former  suit  was  pleaded  in  abatement, 
and  on  demurrer  to  that  plea,  the  court  deciding  that  the  same  right 
did  not  exist  in  the  two  suits  and  therefore  that  the  plea  could  not 
prevaiL     Stevens  v.  Stevens,  1  Metcalf  R.  279. 

A  suit  instituted  by  husband  and  wife  agiinst  the  trustees  of  her  riea  of  a  former 
separate  property  in  respect  of  a  fraud,  cannot  be  pleaded  in  bar  to  a  *'"'' 
subsequent  suit  by  her  and  her  next  friend  against  her  trustees  and 
her  husband  and  another  person  as  parties  to  the  fraud,  although  the 
relief  prayed  in  both  suits  is  the  same,  for  the  first  suit  is  considered  as 
the  suit  of  the  husband  alone.     Reeve  v.  Dalby,  2  S.  &.  S.  464. 

In  the"  case  of  a  plea  of  a  former  suit  depending,  where  the  former 
suit  is  for  relief  in  respect  of  legal  and  equitable  waste,  but  no  evidence 
lias  been  entered  into  with  regard  to  the  equitable,  waste,  and  tiie  de- 
cree makes  no  decision  respecting  it,  and  the  latter  suit  is  exclusively 
for  relief  in  respect  of  equitable  waste,  a  plea  of  the  former  suit  de- 
pending is  bad:  for  the  purpose  sought  to  be  attained  by  tlie  latter  suit 
cannot  be  attained  by  the  former.  Newdigate  v.  Newdigale^  8  Law  J. 
(O.  S.)  Ch.  R.  35.  Complainant  may  dismiss  his  bill  at  any  time  be- 
fore decree,  upon  payment  of  costs,  and  the  court  will  upon  proper  ap- 
plication grant  the  order  to  dismiss  on  costs,  as  of  course.  But  the 
cause  is  not  out  of  court  until  the  costs  are  actually  paid  or  tendered  > 
and  if  a  new  bill  be  filed  with  )ut  paying  the  costs  pursuant  to  the  con- 
ditional order  to  dismiss  upon  payment  of  costs,  defendant  may  plead 
the  pendency  of  the  first  suit  as  a  bar  to  tiie  commencement  of  the 
second  before  the  order  to  discontinue  had  become  absolute,  by  the 
payment  of  costs,  on  the  pendency  of  former  suit  may  be  set  up  by 
plea  or  answer.     Simpson  v.  Brewster,  9  Paige's  R.  24&-7.  245. 


288  PLEAS.  [Chap.  II. 

of  which  the  defendant  has  avoided  by  going  out  of 
the  jurisdiction  of  that  court  (/).     The  plea  must 

*  aver  that  the  second  suit  is  for  the  same  matter  as 
the  first;  and  therefore  a  plea  which  did  not  ex- 
pressly aver  this,  though  it  stated  matter  tending  to 

289  show  it,  was  considered  as  bad  in  point  of  form,  and 
overruled  upon  argument  (m).  The  plea  must 
also  aver  that  there  have  been  proceedings  in  the 

[247]  suit,  as  appearance,  or  process  requiring  appear- 
ance at  the  least  (n).  It  seems  likewise  regular  to 
aver  that  the  suit  is  still  depending  (o)  ;  though  as 
a  plea  of  this  nature  is  not  usually  argued,  but  being 
clearly  a  good  plea  if  true,  is  referred  to  the  exami- 
nation and  inquiry  of  one  of  the  masters  of  the 
court  as  to  the  fact  (p),  it  has  been  held  tliat  a 
positive  averment  that  the  former  suit  is  depending 
is  not  necessary  (q)  (1).  And  if  the  plaintiff  sets 
down  the  plea  to  be  argued,  he  admits  the  truth  of 
the  plea  that  a  former  suit  for  the  same  matter  is 
depending,  and  the  plea  must  therefore  be  al- 
lowed (r)  unless  it  is  defective  in  form  (s).     As  the 

(Z)  See  Morgan  v.  ,   1  Atk.  (o)  3  Atk.  589. 

408.     See  also  Foster  v.  Vassall,  3  (p)  Ord.  in  Ch.  Ed.  Bea.  176, 177; 

Atk.  587,  and  Lord  Dillon  v.  Alva-  2  Ves.  &  Bea.  110. 

res,  4  Ves.  357.  (q)   Urlin  v.  — -,  1  Vern.  332. 

(m)  Devie  v.  Lord  Brownlow,  in  (r)  1   Vera.    332;    Anon,  1   Ves. 

Chan.  23d  July,  1783,  rep.  Dick.  611.  Jun.  484  ;  Daniel  v.  Mitchell,  3  Bro. 

{n)Anon.l    Vern.  318:  Mo»r  v.  O.  C.  544. 

Welsh  Copper  Comp.  1  Eq.  Ca.  Ab.  (s)  This  is  founded  on  a  general 

39.  order  of  the  court,  that  the  plaintiff 

Plea  of  proceed-       (0  A  plea  of  proceedings  in  another  court  must  show  not  only  that 

'"mi"'  ™°*''®'^  the  subject-matter  is  the  same,  and  the  issue  the  same,  but  also  that 

the  object  is  the  same  ;  and  that  the  court    is  a  court  of  competent 

*  jurisdi6tion  ;  and  that  the  result  of  the  proceedings  therein  would  be 
conclusive,  so  as  to  bind  every  other  court.  Behrens  v.  Sievekiiig,  2 
M.  &  C.  602.     See  supra  p.  278  n. 


S.  II.  p.  II.]  PLEAS.  290 

pendency  of  the  former  suit,  unless  admitted  by  the 
plaintiff,  is  made  the  immediate  subject  of  inquiry 
by  one  of  the  masters,  a  plea  of  this  kind  is  not 
put  in  upon  oath  (^). 

It  is  not  necessary  to  the  sufficiency  of  the  plea  [248] 
that  the  former  suit  should  be  precisely  between 
the  same  parties  as  the  latter.  For  if  a  man  insti- 
tutes a  suit,  and  afterwards  sells  part  of  the  pro- 
perty in  question  to  another,  who  files  an  original 
bill  touching  the  part  so  purchased  by  him,  a  plea 
of  the  former  suit  depending  touching  the  whole 
property  will  hold  (u).  So  where  one  part-owner 
of  a  ship  filed  a  bill  against  the  husband  for  an 
account,  and  afterwards  the  same  part-owner  and 
the  rest  of  the  owners  filed  a  bill  for  the  same  pur- 
pose, the  pendency  of  the  first  suit  was  held  a  good 
plea  to  the  last  (x)  ;  for  though  the  first  bill  was  in- 
sufficient for  want  of  parties,  yet  by  the  second  bill 
the  defendant  was  doubly  vexed  for  the  same  cause. 
The  course  which  the  court  has  taken  where  the  se- 
cond bill  has  appeared  to  embrace  the  whole  subject 
in  dispute  more  completely  than  the  first,  has  been 
to  dismiss  the  first  bill  with  costs,  and  to  direct  the 

shall  not  be  put  to  argue  such  a  plea,  defects  in  the  form  of  such  a  plea. 

but  may  obtain,  in  the  first  instance,  (t)  1   Vern.  332.     This   however 

an  order  of  reference  to  a  master  to  can  scarcely  be  deemed  to  extend  to 

inquire  into  the  truth  of  it.     Ord.  in  a  case  of  a  suit  depending  in  a  foreign 

Cha.  Ed.  Bea.  176,  177;  Baker  v.  court.     And  see  Forster  v.  Vassall , 

Bird,  2  Ves.  Jun.  672  ;   Murray  v.  3  Atk.  587. 

Shadwell,   17  Ves.  353 ;  2  Ves.  &.  (u)  Moor  v.  Welsh  Copper  Comp. 

Bea.    110;    Carwick  v.    Young,  2  1  Eq.  Ca.  Ab.  39. 

Swanst.  239 ;  Carrick  v.  Young,  4  (x)  Durand  v.  Hutchinson,  Mich- 

Madd.  437.     See  3  Atk.  589,  as  to  1771,  in  Chan.  (1)' 


(1)  [See  form  of  the  plea  which  was  used  in  this  case,  in  Beamea' 
Pleas,  336.] 


291 


^290  PLEAS.  [Chap.  II. 

defendant  in  the  second  cause  to  answer  upon 
being  paid  the  costs  of  a  plea  allowed  {y),  which 
puts  the  case  on  the  second  bill  in  the  same  situa- 
tion as  it  would  have  been  in  if  the  first  bill  had 
been  dismissed  before  fiHng  the  second.  Where 
a  second  bill  is  brought  by  the  same  person  for  the 
same  purpose,  but  in  a  different  right,  as  where 
the  executor  of  an  administrator  brought  a  bill, 
conceiving  himself  to  be  the  personal  representative 
of  the  intestate,  and  afterwards  procured  admin- 
[249]  istration  de  bonis  non,  and  brought  another  bill  (z), 
the  pendency  of  the  former  bill  is  not  a  good  plea. 
The  reason  of  this  determination  seems  to  have 
been,  that  the  first  bill  being  wholly  irregular  the 
plaintiff  could  have  no  benefit  from  it,  and  it  might 
have  been  dismissed  upon  demurrer.  Where  a 
decree  is  made  upon  a  bill  brought  by  a  creditor 
on  behalf  of  himself  and  all  other  creditors  of  the 
same  person,  and  another  creditor  comes  in  before 
the  master  to  take  the  benefit  of  the  decree,  and 
proves  his  debt,  and  then  files  a  bill  on  behalf  of 
himself  and  the  other  creditors,  the  defendants 
may  plead  the  pendency  of  the  former  suit ;  for 
a  man  coming  under  a  decree  is  quasi  a  party  (a). 
The  proper  way  for  a  creditor  in  such  a  situation 
to  proceed,  if  the  plaintiff  in  the  original  suit  is 
dilatory,  is  by  application  to  the  court  for  liberty  to 
conduct  the  cause  (b). 

(y)  Crofts  V.  Wortley,   1    Ca.  in  (a)  Neve  v.  Weston,  3  Atk.  557 ; 

Cha.  241.  1  Sim.  &  Stu.36 1.(1) 

{z)  Muggins  V.York  Build.  Comp.  (jb)  See    Powell  v.  Walicorth,    2 

2  Atk.  44.  Madd.   R.  183 ;    Sims  v.  Ridge,  3 

(1)  [Also  Edmunds  v.  Acland,  5  Mad.  31] 


S.  II.  p.  II.] 


PLEAS. 


291 


If  a  plaintiff  suies  a  defendant  at  the  same  time  ia1^a1fdto?q,5! 
for  the  same  cause  at  common  law  and  in  equity,  ^' 
the  defendant  after  answer  put  in  (c)  may  apply  to 
the  court  that  the  plaintiff  may  make  his  election  (2)  292 

where  he  will  proceed  (d),  but  cannot  plead  the 
pendency  of  the  suit  at  common  law  in  bar  of  the 
suit  in  equity  (c),  though  the  practice  was  formerly 
otherwise  (/).  If  the  plaintiff  shall  elect  to  proceed  [250] 
in  equity,  the  court  will  restrain  his  proceedings  at 
law  by  injunction,  and  if  he  shall  elect  to  proceed 


Meriv.  458  ;  Edmunds  v.  Acland,  5 
Madd.  31;  Fleming  v.  Prior,  5 
Madd.  42?;  Handford  v.  .Stone,  2 
Sim  &  Stu.  196.  (1) 

(c)  3  P.  Wms.  90 ;  1  Ball  &  B. 
119,  319;  Fisher  v.  Mee,  3  Meriv. 
45 ;  HoguA  V.  Curtis,  1  Jac  &  W. 
449  ;  Browne  v.  Poyntz,  3  Madd. 
24 ;  Coupland  v.  Bradock,  5  Madd. 
14. 

(d)  3  P.  Wms.  90 ;  Anon.  1  Ves. 
Jun.  91  ;  1  Bail  &  B.  320;  Pieters 
V.  Thompson,  Coop.  R.  294  (3).  But 
there  is  a  distinction  iu  the  practice 
where  tiie  court  is  unable  at  once  to 
see  that  it  is  a  case  of  election.  See 
Boyd  V.  Heinzelman,'  1  Ves.  &  B. 
381  ;  2  Ves.  &  B.  110;  Millsy.  Fry, 

3  Ves.  &B.  9,  (1814);  -^ — v. , 

2  Madd.  R.  395 ;  Amory  v.  Brodrick, 
I  Jac.  R.  530,  and  the  cases  therein 
cited.     In  tlie  instance  of  a  mortga- 


gee taking  the  usual  bond  for  re-pay- 
ment of  the  mortgage-money,  he  is 
not  bound  to  elect,  but  may  proceed, 
under  certain  restrictions,  upon  his 
separate  securities  at  law  and  iu 
equity.  Schoole  v.  Sail,  1  Sch.  &. 
Lefr.  176.  But  where  the  plaintiff 
sues  in  both  jurisdictions  in  an  indi- 
vidual character,  and  can  have  in 
the  former  only  a  part  of  the  relief 
which  he  can  obtain  in  the  latter ;  by 
instituting  the  suit  in  this  court,  he 
concludes  himself  from  proceeding  at 
law,  and  therefore  of  course  is  not 
entitled  to  the  privilege  of  election. 
Mills  V.  Fry,  19  Ves.  277,  (1815). 

(c)  3  P.  Wms.  90.  And  it  should 
seem  the  pendency  of  a  suit  in  an 
ecclesiastical  court,  for  payment  of 
a  legacy,  could  not  be  pleaded  to  a 
bill  for  similar  relief  here.  Howell 
V.  Waldron,  1  Ca.  in  Cha.  85. 

(/)  Ord.  in  Cha.  Ed.  Bea.  177. 


(1)  [And  as  to  cases  of  creditors  coming  in  under  such  a  suit,  see, 
amongst  others,  Codwise  v.  Gelston,  on  appeal,  10  J.  R.  507  ;  M'Der- 
mutt  V.  Strong,  4  J.  C.  R.  687  ;  Wilder  v.  Keeler,  3  Paige'd  C.  R. 
164.] 

(1)  On  this  subject,  see  1  Headlam's  Daniell's  Ch.  Pr.  791,  et  seq. 

(2)  [Livingston  v.  Kane,  3  J.  C.  R.  224  ;  Sanger  r.  Wood,  lb.  416  ; 
Rogers  v.  Vosburgh,  4  ib.  84  ;  Gibbs  v.  Perkinson,  4  Hen.  &l  Munf. 
415.] 


PLEAS.  [Chap.  II. 

at  law  the  bill  will  be  dismissed  (g)  (1).     But  if 
S93  he  should  fail  at  law,  this  dismission  of  his  bill  will 

be  no  bar  to  his  bringing  a  new  bill  (A). 
mlttetB  o'f're-*      Ploas  iu  bar  of  matters  of  record,  or  of  matters 
ters  i*n  the"na-  lu  the  uaturo  ofmattcrs  of  record,  in  some  court  not 

tnre  of  matters  .  ^       •      .  ^  -i  n  n 

«omTw^t'°of  '^^^^S  ^  court  01  equity,  may  be — 1,  a  fine  ;  2,  a  re- 
i»w.  covery  ;  3,  a  judgment  at  law,  or  sentence  of  some 

other  court. 
wdiTorckim"^      1-  A  plea  of  a  fine  and  non-claim,  (2)  though  a 
[251]     legal  bar,  yet  is  equally  good  in  equity  (i)  (3),  pro- 
vided it   is   pleaded   with   proper   averments  (A;). 

(i^)  3  P.  VVms.  90,  note  ;  Mousley  Wa  thins  v.  Stone,  2  Sim.  &  Stu.  560. 

V.  Basnett,  1  Ves.  &  B.  382,  note  ;  (k)  Story  v.  Lord  Windsor,  2  Atk. 

Fitzgerald  v.  Sutomb,  2  Atk.  85.  630  ;    Hildyard  v.   Cressy,   3   Atk. 

(h)   Countess    of    Plymouth    v.  303 ;     Page  v.  Lever,  2   Ves.  Jun. 

Bladon,  2  Vera.  32.  450 ;  Butler  v.  Every,  1  Ves.  Jun. 

(i)    Thynne     v.     Townsend,    W.  136  ;  S.C.Z  Bro.  C.  C.  80 ;   Dohson 

Jones,  416  ;  Salisbury  v.  Baggot,  1  v.  Leadbeater,  13  Ves.  230.      The 

Ca.  in  Cha.  278;   2  Swanst.  610;  object  of  the  averments  is  of  course 

(1)  [Livingston  v.  Kane,  3  J.  C.  R.  224  ;  Rogers  v.  Vosburgh,  4  ib. 
84.  Where  the  remedies  at  law  and  in  equity  are  inconsistent,  any 
decisive  act  of  the  party,  with  knowledge  of  his  rights  and  of  the  facts, 
determines  his  election.  Sanger  v.  Wood,  3  ib.  416.]  Where  a  com- 
plainant is  proceeding  in  a  suit  in  equity,  and  in  an  action  at  law  for 
the  same  subject  matter,  the  defendant  is  not  entitled  to  an  order  to 
compel  him  to  elect  in  which  suit  he  will  proceed,  until  such  defend- 
ant has  fully  answered  the  complainant's  bill.  Soule  v.  Corning,  11 
Paige's  Ch.  R.  412. 

(2)  [See  the  form  of  a  plea  of  a  fine  and  non-claim,  Willis,  537.] 

aon-ciaim,  in  a       (3)  A  fine  and  non-claim  cannot  be  pleaded  to  a  bill  to  prevent  the 

enit  to  prevent  getting  up  of  an  outstandlnsf  term.     For  the  person  in  whom  the  legal 
setting  upofan=''^  =  "^  ° 

outstanding         estate  in  a  satisfied  term  is  vested  is  a  trustee  for  the  real  owner  of 
""■  the  estate  ;  and  a  court  of  equity  will  prevent  the  termor  from  setting 

up  the  term,  so  as  to  prevent  the  trial  at  law  of  the  question  who  is 
the  real  owner  of  the  estate.  It  will  not  take  upon  itself  to  decide  that 
question  by  deciding  upon  the  operation  of  the  fine  and  non-claim  ;  be- 
cause if  it  should  decide  against  the  title  by  fine  and  non-claim,  that 
title  might  be  again  tired  at  law.  Leigh  v.  Leigh,  1  Sim.  349. 
Plea  to  a  disco-  And  to  a  bill  by  a  plaintiff  claiming  as  heir-at-law,  and  seeking  a 
^*H^"  ^^^^  ^  discovery,  and  an  injunction  to  restrain  the  setting  up  of  an  outstand- 
ing term,  a  plea  of  a  fine  and  conveyance  in  favor  of  the  person  under 
whom  the  defendant  claims  is  a  good  defence  both  to  the  discovery  and 
to  the  relief.     Gait  v.  Osbaldeslon,  1  Russ.  168. 


S.  II.  p.  II.]  PLEAS.  295 

Where  a  title  is  merely  legal,  though  the  defect  is 
apparent  upon  the  face  of  the  deeds,  yet  the  fine 
will  be  a  bar  in  equity  ;  and  a  purchaser  will  not  ^^^ 

be  affected  with  notice  so  as  to  make  him  a  trustee 
for  the  person  who  had  the  right.  For  a  defect 
upon  the  face  of  title-deeds  is  often  the  occasion 
of  a  fine  being  levied  (Q.  And  even  a  fine  levied 
upon  bare  possession,  with  non-claim,  may  be  a  bar 
in  equity,  if  a- legal  bar,  though  with  notice  at  the 
time  the  fine  was  levied  (m).  But  with  respect  to 
equitable  titles  there  is  a  distinction.  For  where 
the  equity  charges  the  land  only,  the  fine  bars  (w), 
but  where  it  charges  the  person  only  in  respect  of 
the  land  (o),  the  fine  does  not  bar  (p).  Therefore 
if  a  man  purchases  from  a  trustee,  and  levies  a  fine, 
he  stands  in  the  place  of  the  seller,  and  is  as  much 
a  trustee  as  the  seller  was  (r),  provided  he  has 
notice  of  the  trust,  or  is  a  purchaser  without  con- 
sideration (s).  So  if  the' grantee  of  a  mortgagee  [252] 
levies  a  fine,  that  will  not  discharge  the  equity  of 
redemption  (t).  But  there  are  cases  of  equitable 
as  well  as  of*  legal  titles,  in  which  a  fine  and  non- 
claim  will  bar,  notwithstanding  notice  at  the  time 
of  levying  the  fines  (u)     It  has  been   determined, 

to  show  that  it  was  an  eQectual  fine,  (r)  2  Atk.  631  ;  Kennedy  v.  Daly, 

13  Ves.  233.                                     ^  1  Sch.  &  Lefr.  355. 

(0  2  Atk.  631.                           '  (s)  Gilb.  For.  Kom.  62;  liovy  v. 

(7h)    Brereton  v.  Gamul,  2   Atk.  Sinith,  2  Ca.  in  Cha.  124;  «■.  C.  1 

240.  Vern.  60,  and  1  Vern.  84  ;  on  rohear- 

(n)  Gifford   v.    Phillips,  cited  2  ing  see  1  Vern.  144,  the  decree  was 

Swanst.  612.  reversed:  but  see  1  Sch.  &  Lefr.  379, 

(o)  Earl  Kenoul  v.  Grevil,  cited  380. 

2  Swanst.  611  ;  S.  C.  I  Ca.  in  Cha.  (t)  2  Atk.  631 ;  Contra,  2  Freem. 

295.  21,  69  ;  but  see  1  Sch.  &  Lefr.  378, 

(p)  1  Ca.  in  Cha.  278;  2  Swanst.  380. 

611 ;  and  see  2  Atk.  390;  1  Sch.  &  («)  2  Atk.  361  ;  Hildyardv.  Cres- 

Lefr.  381.  sey,  3  Atk.  303  ;  Shields  v.  AtkitUi 

3  Atk.  560. 


295  PLEAS.  [Chap.  IL 

however,  that  if  a  fine  is  levied  where  the  legal 
estate  is  in  trustees  for  an  infant,  and  the  trustees 
neglect  to  claim,  the  infant,  claiming  by  bill  within 
five  years  after  he  attains  twenty-one,  shall  not  be 
barred  (x).  But  perhaps  this  should  be  understood 
as  referring  to  the  case  of  a  fine  levied  with  notice 
of  the  title  of  the  infant  (?/).  Where  a  title  to  lands 
is  merely  equitable,  as  in  the  case  of  an  agree- 
ment to  settle  lands  to  particular  uses^ claim  to  avoid 
the  fine  must  be  hy  suhpcena  (z).  The  pendency 
of  a  suit  in  equity  will  therefore  in  equity  prevent 
in  many  cases  the  running  of  a  fine  {a).  Upon  the 
whole,  wherever  a  person  comes  in  by  a  title  oppo- 
site to  the  title  to  a  trust  estate  (U),  or  comes  in  un- 
der the  title  to  the  trust  estate,  for  a  valuable  con- 
sideration, without  fraud,  or  notice  of  fraud  or  of 
[253]  the  trust  (c),  a  fine  and  non-claim  may  be  set  up  as 
a  bar  to  the  claim  of  a  trust  (d).  When  a  fine  and 
non-claim  are  set  up  as  a  bar  to  a  claim  of  a  trust, 
by  a  person  claiming  under  the  same  title,  it  is  not 
suflScient  to  aver  that  at  the  time  the  fine  was  levied 
the  seller  of  the  estate  being  seised,  er  pretending 
to  be  seised,  conveyed  ;  but  it  is  necessary  to  aver 
that  the  seller  was  actually  seised.  It  is  not,  in- 
deed, requisite  to  aver,  that  the  seller  was  seised  in 
fee ;  an  averment  that  he  was  seised  ut  de  lihero 
tenemento,  and  being  so  seised  a  fine  was  levied, 

(x)  Allen  V.  Sayer,  2  Vern.  368.  (a)  2   Atk.  389,  390 ;   Pincke   v. 

(y)    Wych   v.  E.  I.  Comp.  3    P.  Thornycroft,  1  Bro.  C.  C.  289  ;  S.  C. 

Wms.   309  ;     Earl  v.   Countess    of  4  Bro.  P.  C.  92,  Toml.  Ed. ;  1  Sch. 

Huntington,  ibid.  310,  note  G.  &  Lefr.  432. 

(z)  Salisbury  v.  Baggott,  I  Ca.  (6)  Stoughton  v.  OnsloiOj  cited  2 

in  Cha.  278  ;  S.C.2  Freem.  21,  aud  Swanst.  615  ;  and  1  Freem.  311. 

more  accurately  reported,  from  Lord  (c)  I  Sch.  &  Lefr.  3S0. 

Nottingham'sTWSS.  2  Swanst.  603.  {d)  Gilb.  For.  Rom.  63. 


3.  Plea  of  •  re- 
covery. 


S.  II.  p.  II.]  PLEAS.  296 

will  be  sufficient  (e).     A  fine  and  non-claim  may 
be  pleaded  in  bar  to  a  bill  of  review  (/). 

2.  To  a  claim  under  an  entail,  a  recovery  duly 
suffered,  with  the  deed  to  lead  the  uses  of  that  re- 
covery, may  be  pleaded,  if  the  estate  limited  to 
the  plaintiff,  or  under  which  he  claims,  is  thereby 
destroyed  (g)  (1). 

3.  If  the  judgment  of  a  court  of  ordinary  juris-  judgi^en'  of  a 
diction  has  finally  determined  the  rights  of  the  par-  ry  junfldTcaM*' 
ties,  the  judgment  may  in  general  be  pleaded  in  bar 

of  a   bill  in   equity  (/«).  Thus   where  a  bill  was 
brought  by  a  person  claiming  to  be   son  and  heir  ggy 

of  Joscelin,  Earl  of  Leicester^  and  alleged  that  the     [254] 
earl,  being  tenant  in  tail  of  estates,  had  suffered  a 
recovery,  and  had  declared  the  use  to  himself  and 
a  trustee  in  fee,  and  that  the  plaintiff  had  brought 

^(c)  2  Atk.  630  ;  2  Sch.  &  Lefr.  99.  Tract  published  at  end  of  1   Rep.  in 

And  see  the  cases  cited  above,  p.  293,  Cha.  on  Jurisd.  of  the  Court  of  Cha. ; 

note  {k).  Hunby  v.  Johnson,  1  Rep.  in  Cha. 

(■/)  Lingard   v.  Griffin,  2  Vern.  243;  Bluck  v.  Elliot,  Finch  R.  13; 

189.  Pitt  V.Hill,  Finch  R.  70;    Temple 

(g)  Att.  Gen.  V.Sutton,  I  P.Wms.  v.  i5aZ«i7/g-/ass,  Finch  R.  275  ;  Cor- 
754  ;  Salkeld  v.  Salkeld,  1763,  be-  nell  v  Ward,  Finch  R.  239  ;  Wilcox 
fore  Lord  Northington  ;  Brown  v.  v.  Sturt,  1  Vern.  77;  Bisscll  v.  Ax- 
Williamson,  Trin.  1772,  before  Lord  tell,  2  Vern.  47 ;  Penvill  v.  Lus- 
Bathurst.  combe,  (1728),  rep.  2  Jac.  &,  \V.  201 ; 

{h)  See  Throckmorton  v.  Finch,  4  3  Bro.  C.  C.  72  ;  1  Scli.  &  Lefr.  204  ; 

Co.  Inst.  86 ;  S.  C.  cited  also  in  a  Ord.  in  Cha.  19,  Ed.  Bea. 

(1)  Where  a  plaintiff  claims  as  heir  at  law  of  a  person  who  devised  „,    ,  , 
^    '  I  .  *^  Plea  of  a  rcco- 

estates  tail,  reserving  the  ultimate  reversion  to  her  own  right  heirs,  very. 

and  the  bill  alleges  that  no  valid  recovery  was  suffered,  or  if  it  were, 

thattlie  property  was  so  stilled  that  the  plaintiff  is  entitled  as  heir  oftlie 

testator  ;  a  plea  which' sets  forth  the  substance  of  the  recovery  and  of 

tlie  deeds  making  the  tenant  to  the  prrocipe  and  le'idin;r  ti.e  uses  of 

the  recovery,  showing  that  a  recovery  was  sutlered  by  the  tenant  for 

life  and  the  ultimate  remainderman    in  tail,  to  the  use  of  another  person 

in  fee,  is  a  good    defence,  altliougli  not    supported  by    any  answer. 

PlunkeU  v.  Cavendih,  1  Rues.  &  My.  713. 


297  PLEAS.  [Chap.  II. 

a  writ  of  right  to  recover  the  lands,  but  the  defend- 
ant had  possession  of  the  title-deeds,  and  intended 
to  set  up  the  legal  estate  which  was  vested  in  the 
trustee,  and  prayed  a  discovery  of  the  deeds,  and 
that  the  defendant  might  be  restrained  from  setting 
up  the  estate  in  the  trustee,  the  defendant  pleaded, 
as  to  the  discovery  of  the  deeds  and  relief,  judg- 
ment in  her  favor  in  the  writ  of  right ;  and  aver- 
red that  the  title  in  the  trustee,  which  the  bill  sought 
to  have  removed,  had  not  been  given  m  evidence  : 
and  the  plea  was  allowed  (i).  In  this  case  the  bill 
was  brought  before  the  trial  in  the  writ  of  right, 
and  the  plaintiff  had  proceeded  to  trial  without  the 
discovery  and  relief  sought  by  his  bill  for  the  pur- 
poses of  the  trial.  The  plea  was  subsequent  to  the 
judgment.  It  may  be  doubted  therefore  whether 
the  averment  that  the  title  in  the  trustee  had  not 
been  given  in  evidence  on  the  trial  of  the  writ  of 
right  was  necessary,  as  the  judgment  was  a  bar,  as 
a  release  subsequent  to  the  filing  of  the  bill  would 
[2551  have  been  ;  and  if  the  plaintiff  could  have  avoided 
the  effect  of  the  judgment  because  the  title  in  the 
trustee  had  been  given  in  evidence,  it  should  seem 
^°  thai  that  fact,  together  with  the  fact  of  the  judgment, 

ought  to  have  been  brought  before  the  court  by  an- 
other bill  in  the  nature  of  a  bill  for  a  new  trial, 
either  as  a  supplemental  bill,  or  as  an  original  bill, 
the  former  bill  being  dismissed  (Jc). 

(i)  Sidney,  styling    himself  Earl  ther  a  court  of  equity  could  give  relief 

of  Leicester  v.  Perry,  ia  Chan.  23d  after  a  judgment  at  law,  see  3  lilackst. 

July,  1783.  Comm.  p.  54 ;  Gilb.  For.  Rom.  56  ; 

(/:)  Respecting  the  dispute  in  the  and  the  Tract  on  the  Jurisdiction  of 

time  of  Lord    Ellesmere,  raised  by  the  Court  of  Chancery,  comprising 

Lord  Coke,  upon  the  question  whe-  the  order  of  the  king  (James  I.),  ou 


S.  II.  p.  II.]  PLEAS.  298 

To  a  bill  to  set  aside  a  judgment,  as  obtained  against 
conscience  (I),  the  defendant  has  been  permitted  to 
plead  the  verdict  and  judgment  in  bar  (m)  (2)  ; 
but  it  may  be  doubted  whether  in  this  case  the  de- 
fendant might  not  have  demurred  to  the  bill,  as  there 
does  not  appear  to  have  been  any  charge  in  the  bill 
requiring  averment  to  support  the  plea.  A  sen- 
tence of  any  (n)  (3),  even  a  foreign  court  (o),  may 
be  a  proper  defence  by  way  of  plea  ;  but  the  court  [256] 
pronouncing  the  sentence  must  at  least  have  had 

tlie  subject  published.at  the  end  of  1  bugg,  Finch   R.  171 ;  Anon.  3  Rep. 

Rep.  in  Cha.  Ed.  1715  (1),  and  that  in  Cha.  25. 

order  at  end  of  Gary's  Reports,  Ed.         (n)  See  the  cases  referred  to,  page 

1650.  296,  note  (A). 
(I)  2  Ves.  Jun.  135.  (o)  See  Newland  v.  Horseman,  1 

(m)   Williams  v.  Lee,  3  Atk.  223.  Vern.  21  ;  S.  C.  2  Ca.  in  Cha.  74; 

And  see  Sewel  v.  Freeston,  1  Ca.  in  Burrows ■</.  Jemineau,Se\.C&.'\aC\\&. 

Cha.  65  ;  Shuter  v.  Gilliard,   2  Ca.  69  ;  5".  C.  Mos.  1  Dick.  48  ;  Gage  v. 

in  Cha,  250;  Armstead  v.  Parker,  Bulkeley,  3   Atk.  215;  S.  C.  2  Ves. 

Finch  R.  171 ;  Huddlestone  v.  As-  556 ;  White  v.  Hall,  12  Ves.  320. 


(1)  [See  a  more  correct  copy  of  this  tract  in  the  Collectanea  Juridica, 
vol.  1.  p.  23  :  and  also  see  Hallam's  Const.  Hist  vol.  i.  p.  370,  (English 
edit.)]. 

(2)  See  the  form  of  such  a  plea,  Willis,  648  ;  and  also  the  form  of 
the  plea  used  in  Williams  v.  Lee,  supra.] 

(3)  A  decision  of  an  ecclesiastical  council  may  be  pleaded  ;  thus 
where  tlie  minister  and  his  parish  in  Massachusetts,  submit  a  contro- 
versy to  an  ecclesiastical  council,  its  decision,  not  impeached  for  good 
cause,  is  a  justification  of  the  party  conforming  to  it,  though  it  does 
not,  ea;  prcyprio  vigore,  operate  as  a  judgment.  It  has  been  viewed  in 
the  light  of  an  arbitration  and  award  ;  but  it  is  not  conclusive  in  all 
respects.  The  minister  having  conformed  to  it,  sued  for  his  salary, 
and  on  bill  filed  by  the  parish  for  discovery,  alleging  he  had  forfeited 
his  office  on  ground,  which  was  the  very  subject  submitted  and  praying 
he  might  answer  on  oath  touching  the  same  ;  a  plea  in  bar  of  the  de- 
cision and  his  conformation  thereto,  was  allowed,  and  the  court  held 
that  he  was  not  compelled  to  make  the  discovery  sought,  because  the  de- 
cision precluded  the  parish  from  any  evidence  in  sup[)ort  of  the  ground 
so  alleged  for  forfeiture  by  way  of  defence  to  said  action.  Proprietors 
of  Mollis  Street  Meeting-House  v.  Pierponl,!  Metcalf  R.  (Mass.)  496. 

25 


299  PLEAS.  [Chap.  IL 

full  jurisdiction  to  determine  the  rights  of  the  par- 
ties {p)  (4).     If  there  is  any  charge  of  fraud,  or 
other  circumstance  shown  as  a  ground  for  relief, 
the  judgment  or  sentence  cannot  be  pleaded  ((/), 
unless  the  fraud,  or  other  circumstance,  the  ground 
upon  which  the  judgment  or  sentence  is  sought  to 
be  impeached,  be  denied,  and  thus  put  in  issue  by 
the  plea,  and  the  plea  supported  by  a  full  answer  to 
the  charge  in  the  bill  (r).     Upon  this  principle  the 
court  of  exchequer  determined  upon  a  bill  brought 
by  insurers  of  part  of  the  property  taken  on  board 
the  Spanish  ships  at  Omoa.     The  bill  charged  that 
the  navy,  on  whose  behalf,  as  captors,  the  defend- 
ants had  insured,  where  not  the  real  captors,  or  not 
the  only  captors  ;  that  the  Spanish  ship  struck  to 
the  land-forces  ;  and  that  although  the  court  of  ad- 
miralty had  condemned  the  ship  taken  as  prizes 
to  the  navy,  yet  that  condemnation  had  been  ob- 
tained in  consequence  of  the  king's   procurator- 
general  having  withdrawn  a  claim  made  on  behalf 
of  the  crown  at    the  instance  of  the  land-forces, 
and  of  an  agreement  between   the   sea  and  land- 
forces  to  make  a  division    of  the  treasure  ;  and 
that  the  sentence  was  therefore,  as  against  the 

(p)   Gage  V.  Bulkeley,  2  Atk.  215.  and  of  Gary's  Rep.  ;  and  see  2  Ves. 

[And  see   Van   Wyck  v.   Seward,  1  Jun.  135. 

Edwards  V.  C.  Reports,  327.]  (r)  6  Ves.  596.     As  to  the  neces- 

(q)  See  2  Ca.  in  Cha.  251 ;    and  sity  of  these   averments  in  the  plea, 

see  the  tract  and  order  referred  to  in  and  the  support  of  the  plea   by  an- 

last  page  at  the  end  of  1  Rep.  in  Cha.  swer,  see  p.  281,  et  seq. 


Plea  of  a  foreign       d)  A  plea  of  a  foreign  judgment  must  show  that  the  general  fact 
judgment.  which  is  stated  by  the  plaintiff" as  the  ground  of  equity  was  decided  by 

a  foreign  court  of  competent  jurisdiction  not  to  be  a  ground  of  equity. 

Garcias  v.  Ricardo,  14  Sim.  265. 


S.  II.  p.  II.]  PLEAS.  299 

plaintiffs  the   insurers,  not   conclusive.     The   de- 
fendants pleaded  the   sentence  of  the  admiralty, 
both  to  discovery  of  the  fact  stated  in  the  bill,  and 
to  the  relief  prayed.     The  plea  was  in  many  re-       [257] 
spects  informal,  but  the  court  was  of  opinion  that  ^^^ 

the  sentence  thus  impeached  could  not  be  pleaded 
in  bar  to  the  discovery  sought  by  the  bill,  and  that 
as  a  bar  to  relief,  it  ought  to  have  been  supported 
by  averments  negativing  the  grounds  on  which  it 
was  impeached  by  the  bill  (s)  (1). 

A  will,  and  probate  even  in  the  common  form,  in 
the  proper  ecclesiastical  court,  which  is  in  the  na- 
ture of  a  sentence  (t),  is  a  good  plea  to  a  bill  by 
persons  claiming  as  next  of  kin  to  a  person  sup- 
posed to  have  died  intestate  (w).  And  if  fraud  in 
obtaining  the  will  is  charged,  that  is  not  a  sufficient 
equitable  ground  to  impeach  the  probate  ;  for  the 
parties  may  resort  to  the  ecclesiastical  court,  which 
is  competent  to  determine  upon  the  question  of 
fraud  (x).  But  where  the  fraud  practised  has  not 
gone  to  the  whole  will,  but  only  to  some  particular 
clause,  or  if  fraud  has  been  practised  to  obtain  the 
consent  of  next  of  kin  to  the  probate  (?/),  the  courts 
of  equity  have  laid  hold  of  these  circumstances  to 

(s)  Parkinson  v.  Lecras,  23d  Feb.  v.  Branshy,  7  Bro.  P.  C.  437,  Toml.       L"^°J 

1781.  Ed.;  Meadows  y.  Duchess  of  King- 

(<)  See  1  Atk.  516.  ton,  Mich.  1777,  reported  Ambl.  756 ; 

(u)  Jauncy  v.  Sealey,  1  Vern.  397.  5  Ves.  647  ;  Griffiths  v.  Hamilton, 

(x)  Archer  v.  Mosse,  2  Vern.  8;  12  Ves.  298  (1). 

Nelson  V.  Oldfield,  2  Vern.  76;  Att.  (y)  As  to  the  kind  of  relief  which 

Gen.  V.  Ryder,  2  Ca.  in  Cha.  178;  may  be  given  where  a  probate  lias 

Plume  V.  Beale,  1  P.  Wms.  388  ;  2  been  obtained  by  fraud,  see  Barnesly 

P.  Wras.  287  ;  2  Atk.  324  ;  Kerrick  v.  Powel,  1  Ves.  284. 


(1)  [And  see  notes  at  page  123,  ante  ;  also  Jones  r.  Jones,  7  Price, 
663.] 


301  PLEAS.  [Chap.  II. 

declare  the  executor  a  trustee  for  the  next  of  kin  (y). 
Where  there  are  no  such  circumstances  the  pro- 
bate of  the.  will  is  a  clear  bar  to  a  demand  of  per- 
sonal estate  (z)  ;  and  where  a  testator  died  in  a 
foreign  country,  and  left  no  goods  in  any  other 
country,  probate  of  his  will  according  to  the  law  of 
that  country  was  determined  to  be  sufficient  against 
an  administration  obtained  in  England  (<?). 
pieasin  bar  of      pieas  iu  bar  of  matters  in  pais  only  sometimes 

matters  in  pais.  ±  J 

go  both  to  the  discovery  sought,  and  to  the  relief 
prayed  by  the  bill,  or  by  some  part  of  it ;  some- 
times only  to  the  discovery,  or  part  of  the  disco- 
very ;  and  sometimes  only  to  the  relief,  or  part  of 
th«  relief. 

Pleas  of  this  nature  (which  may  go  both  to  the 
discovery  and  relief  sought  by  the  bill,  or  by  some 
patt  thereof,  but  which  sometimes  extend  no  further 
than  the  relief)  are  principally  :  1 .  A  plea  of  a  stat- 
ed account  (1)  ;  2.  Of  an  award ;  3.  A  release  (2)  ; 

ixj]  Marriot  v.  Marriot,  iu  Exch.     Ambl;  762,  763. 
1  Stra.  666,  and  argument  of  Ld.  Ch.         (z)  12  Ves.  307. 
Baron  Gilbert,  Gilb.  Ca.  in  Cha.  203.         (a)  Jauncy  v.  Sealey,  1  Vern.  397. 


(1)  [Tt  is  a  strong  rule  of  equity  that  a  general  release  shall  be  con- 
fined to  what  was  under  consideration  at  the  time  of  giving  it. 
M'Intyre  v.  Clarke,  1  Edwards'  V.  C.  Reports,  34.]  , 

(2)  [In  setting  ap  a  defence  under  a  public  statute,  it  is  not  necessa- 
ry, either  in  this  court  or  in  a  court  of  law,  that  the  pleader  should  set 
forth  the  statute  in  his  plea,  or  that  he  should  allege  the  existence  of 
a  statute  of  which  the  court  is  judicially  bound  to  take  notice.  It  is 
sufficient  for  him  to  state  the  facts  which  are  necessary  to  bring  the 
case  within  the  operation  of  the  statute  ;  and  to  insist  that  upon  these 
facts  the  plaintiff's  right  or  remedy  is  at  an  end.  The  court  will  then 
judicially  take  notice  of  the  existence  of  the  statute  and  declare  its 
legal  effect  upon  the  case  as  made  by  the  pleadings.  Per  Chancellor 
Walworth,  in  Bogardus  v.  Rector,  <^c.,  of  Trinity  Church,  4  Paige's 
C.  R.  197-8.  178,  supra,  p.  318.     Indeed,  it  seems  more  appropriate  in 


S.  II.  p.  IT.]  PLEAS.  301 

4.  Of  a  will  or  conveyance,  or  some  instrument  . 
controlling  or  affecting  the   rights  of  the  parties ; 

5.  A  plea  of  any  statute  which  may  create  a  bar 
to  the  plaintiff's  demand,  as  the  statute  for  pre- 
vention of  frauds  and  perjuries,  or  the  statutes  for 
limitation  of  actions,  which  may  be  considered  as 
a  plea  of  matter  in  pais ;  for  though  the  statute  it- 
self is  usually  set  forth  in  the  plea,  yet  that  perhaps 
is  unnecessary,  and  the  substance  of  the  plea  con- 
sists in  the  averment  of  matter  necessary  to  bring  [259] 
the  case  within*the  particular  statute  ;  and  there-  ^^'^ 
fore  if   those  matters  appeared  on  the  face  of  the 

bill  itself  it  may  be  presumed  a  demurrer  would 
hold,  though  this  has  been  doubted. 

1.  A  plea  of  a  stated  account  is  a  good  bar  to  a  tedlccJ^xLl '^' 
bill  for  an  account  (h).     It  must  show  that  the  ac- 
count'was  in  writing,  or  at  least  it  must  set  forth  the 
balance  (c).      If  the  bill  charges  that  the  plaintiff 

(b)  Anon.  2  Freem.  62;    1  Vern.  &  W.  201  ;  Irvine  v.  Youug,  1  Sim' 

180;  Dawson  v.  Dawson,  1  Atk.  1  ;  &.  Stu.  333. 
Sumner  v.  Thorpe,  2  Atk.  1  ;  Pen-         (c)  2  Atk.  399.  (1) 
vil  V.  Luscombe,  (1728),  rep.  2  Jac. 

this  court  to  plead  the  facts  merely  which  bring  the  case  within  the 
operation  of  the  principle  of  the  statute,  than  to  plead  the  statute,  in 
terms,  as  a  bar.    lb.     But  see  Sailers  v.  Tobias,  3  Paige's  C.  R.  338.] 

(1)  [Hodderv.  Wa^/s,  4  Price,  8 ;  Bogardus  v  Rector,  dj-c,  of  Trinity 
Church,  4  Paige's  R.  178.  Where  a  plea  of  a  stated  account 
speaks  of  the  balance  which  was  admitted  upon  it,  and  avers  the  ac- 
count to  be  just  and  true,  it  must,  nevertheless,  be  supported  by  an 
answer  denying  the  receipt  of  any  part  of  the  money  for  which  the 
defendant  is  called  to  account  subsequently  to  the  time  when  the 
account  stated  was  adjusted.  Daiiels  v.  'TaggarCs  adminisLrator,  1 
Gill  &  Johns.  311.] 

A  plea  of  an  account  stated  and  settled  should  state  that  the  com- 
plainant and  defendant  made  up  stated  and  settled  an  account  in  wri- 
ting, and  that  the  complainant  after  examination  approved  of  said  ac- 
count.    These  allegations  are  in  all  the  precedents  and  are  important. 


802  PLEAS.  [Chap.  II. 

has  no  counterpart  of  the  account,  the  account 
should  be  annexed  by  way  of  schedule  to  the  an- 
swer, that  if  there  are  any  errors  upon  the  face  of 
it  the  plaintiff  may  have  an  opportunity  of  pointing 
[260]     them  out-  {d).     If  error  (e)  or  fraud  (/)  is  charg- 

(rf)    Hankey  v.  Simpson,  3    Atk.  1  Barnard,  272 ;  Roberts  v.  Kuffin, 

303  (2).  2  Atk.  112 ;  Pit  v.  Cholmondeley,  2 

(e)  On  the  subject  of  this  court's  2  Ves.  565  ;  Johnson  v.  Curtis,  3  Bro. 

mterference,  where  there  is  error  in  a  C.  C.  266  ;  Gray  v.  Minnethorpe,  3 

settled  account,  see  Anon.  2  Freem.  Ves.  103 ;  Lord   Hardwicke  v.  Ver- 

62;  ProMrfv.Comfies, 2  Freem.  183;  non,  4  Ves^ 411 ;  5  Ves.  837;  Kina- 

S.  C.  3  Rep.  in  Cha.  18 ;  1  Ca.  in  man  v.  Barker,  14  Ves.  262  (3). 

Cha.  55  ;  2  Freem.  183  ;  Nela.  100 ;  (/)  As  to  its  interference  where 

and  1  Eq.  Ca.  Ab.  12;    Wright  v.  the   settlement   of   an   account   has 

Coxon,  1  Ca.  in  Cha.  262;  Bedell  v.  been  accompanied  with  fraud,  see Fer- 

Bedell,  Finch  R.  5  ;  Dawson  v.  Daw-  nonv.Vawdry,^  Atk.  119  ;  Nevoman 

son,  1  Atk.  1 ;  Bourke  v.  Bridgeman,  v.  Payne,  2  Ves.  Jun.  199  ;  Wharton 


When  all  the  allegations  of  the  plea  being  taken  as  true  do  not  make 
out  a  full  defence,  the  plea  cannot  be  sustained.  But  where  the  court 
believed  that  the  omission  of  the  necessary  allegations  was  accidental 
and  could  readily  be  supported,  the  court  would  allow  defendant  to 
amend  it  in  these  particulars,  and  in  default  thereof  the  plea  was 
ordered  to  stand  for  answer,  with  leave  to  complainant  to  except  to  it. 
The  answer  in  support  of  the  plea,  though  not  stated  to  be  so,  was  de- 
cidedly so,  and  was  also  allowed  to  be  amended  in  a  formal  omission 
of  stating  it  to  be  in  support  of  the  plea.  Meeker  v.  Marsh,  Ex^r,  ^c, 
Saxton  (N.  J.)  Ch.  R.  203-4.  198. 

tSuch  is  the  peculiar  nature  of  this  kind  of  pleading  in  equity  tliat  a 
court  should  always  be  careful  to  see  that  it  sets  forth  plainly  and  ex- 
plicitly every  matter  necessary  to  constitute  a  complete  defence  and 
bar  to  the  complainant's  claim. ^  For  if  the  plea  be  allowed  by  the 
court  a.-5  correctly  pleaded,  and  is  afterwards  proved,  the  cause  is  at  an 
end.  The  allowance  of  a  plea,  says  Lord  Redesdale,  is  as  complete  a 
judgment  against  the  claims  of  plaintiff,  as  can  be  given  on  the  most 
solemn  and  deliberate  hearing  of  the  cause  on  the  pleadings  and 
proofs,  provided  the  truth  of  the  plea  be  established  by  evidence.  2 
Scho.  &  Lef.  725,  Roche  V.  Morgall,  quoted  in  Meeker  v.  Marsh, 
Saxton  C.  R.  203-4.  198. 

(2)  [Blfickledge  v.  Simpson,  1  Hay  ward's  R.  259.  Weed  v  .Small, 
7  Paige's  Ch.  R.  573.] 

(3)  [Chappedelaine  v.  Decheneauz,  4,  Cranch,  306.] 


S.  II.  p.  II.]  PLEAS.  302 

ed  {g)  it  must  be  denied  by  the  plea  as  well  as  by 

way  of  answer  {h)   (1)  ;     and  if  neither  error  nor  303 

fraud  is  charged,  the  defendant  must  by  the  plea 

aver  that  the  stated  account  is  just  and  true  to  the 

best  of  his  knowledge  and  belief  (^).     The  delivery 

up  of  vouchers  at  the  time  the  account  was  stated 

seems  to  be  a  proper  averment  in  a  plea  of  this 

nature  {k),  if  the  fact  was  such  (/)  (2). 

2.  An  award  may  be  pleaded  to  a  bill  to  set  aside  awari"  **'  ** 

V.    May,  5    Ves.  27  ;    Beaumont   v.  And  see  above,  p.  280,  e.t  seq. 

Boultbee,  5  Ves.  485 ;  S.  C.  1  Ves.  (i)  3  Atk.  70 ;  1  Eq.  Ca.  Ab.  39  ; 

599;    11    Ves.    358;    Langstaffe  \.  2  Sch.  &  Lefr.  727.     And  see  J»fa«- 

Taylor,  14  Ves.  2G2  ;  Drew  v.  Power,  thews  v.  Walwyn,  4  Ves.  118;  Mid- 

1  Sch.  &  Lefr.  182.  dleditch   v.    Sharland,   5   Ves.  87 ; 

{g)  9  Ves.  265,  266.  [Bogardus    v.  Rector,   ^c.    Trinity 

(h)  Gilb.  For.  Rom.  56 ;  1  Ca.  in  Church,  4  Paige's  R.  178.] 

Cha.  299  ;  2  Freem.  62  ;  6  Ves.  5!)6  ;  (k)  Gilb.  For.  Rom.  57 ;  Walker  v. 

Clarke  v.  Earl  of  Ormonde,  1  Jac.  Consett,    Forrest's    Exch.    R.    157  ; 

R.  116.     And,  it  seems,  if  the  plain-  Hodder  v.  Watts,  4  Pri.  E.\ch.  R.  8- 

tifF  allege  that  he  has  no  counterpart  And  see  Wharton  v.  May,  5  Ves.  27. 

of  the  stated  account,  the  defendant  {I)  2  Atk.  252.     See  the  ceise  of 

must  annex  a  copy  thereof  to  his  plea,  Clarke  ■v.  Earl  of  Ormonde,  1  Jac. 

Oankey   v.    Simpson,  3    Atk.   303.  R.  116. 


(1)  A  plea  of  a  leg^al  bar  (such  as  a  full,  true,  and  settled  account,  Neceasity  that 
and  a  release, )  is  defective  if  it  does  not  explicitly  negative,  so  as  to  bar^g^oufd  nf*? 
ffive  the  plaintiff  an  issue  on  the  plea  to  try,  circumstances  which  are  ative  circum- 

.  ,  .        1      1   11  X        1  r        I         J        11      •  J      1  •   1       T  .  stances  aflecting 

charged  by  the  bill  (such  as  Iraud  and  collusion),  and  which,  it  true,  the  bar. 

would  render  the  legal  bar  insufficient.  And  this  is  the  case  even 
though  such  matters  are  positively  denied  by  an  answer  in  support  of 
the  plea.  Phelps  v.  Sprowle,  1  My.  &  K.  231,  decided  by  Lord  Broug- 
ham, C,  overruling  the  decision  of  the  Vice-Chancellor. 

(2)  A  plea,  by  a  trustee,  of  a  settled  account  and  release,  to  inquiries  ;|'^g'ou  V  *^d"*e* 
as  to  the  execution  of  a  trust,  is  bad,  if  it  does  nut  aver  that  the  matters  iea»e. 
inquired  after  appear  from  the  account.     And  a  plea  of  a  settled  ac- 
count and  release  to  a  bill  by  a  cestui  que  trust  against  a  trustee  will 

not  protect  the  trustee  from  a  discovery  of  vouchers.  Clarke  v.  The 
Earl  of  Ormonde,  Jac.  116. 

[Seethe  form  of  a  plea  of  a  stated  account,  Willis,  550 ;  and  observe 
the  notes  there.] 


304  PLEAS.  [Chap.  II. 

the  award  and  open  the  account  (m)  ;  and  it  is  not 
only  good  to  the  merits  of  the  case,  but  Hkewise  to 
the  discovery  sought  by  the  bill  (n).  But  if  fraud 
or  partiality  is  charged  against  the  arbitrators  (/?), 
[261]  the  charge  must  not  only  be  denied  by  way  of 
averment  in  the  plea,  but  the  plea  must  be  support- 
ed by  an  answer  showing  the  arbitrators  to  have 
been  incorrupt  and  impartial  (q)  ;  and  any  other 
matter  stated  in  the  bill  as  a  ground  for  impeach- 
ing the  award  must  be  denied  in  the  same  man- 
ner (2). 
^^pieacfare.  g  j^  ^j^^  plaintiff,  or  a  person  under  Avhom  he 
claims,  has  released  the  subject  ofhis  demand,  the  de- 
fendant may  plead  the  release  in  bar  of  the  bill  (r)  (3), 

(m)  Lingood  v.  CroucJier,  2  Atk.  S.  C.  reported  1  'J'urn.  R.  131,  note  , 

395 ;  Lingood  v.  Fade,  S.  C.  2  Atk.  Chicot  v.  Lequesne,  2  Ves.  315;  2 

501;  Burton   v.  Ellington,   3    Bro.  Ves.  Jun.  135 ;  ReynellY.Luscombe, 

C.  C.  196  (1).  1  Turn.    R.    135,  n. ;    Goodman   v. 

(^n)   Tittensonv.Peat,3  Aik.529;  Sayers,  2  Jac.  &l\V.  249  ;  Auriol  v. 

Anon.  3  Atk.  644.     As  to  a  plea  of  Smith,  1  Turn.  R.  121  ;   Dawson  v. 

an  award  under  an  agreement  to  refer  Sadler,  1  Sim.  &.  Stu.  537. 

the  matters  in  dispute  to  arbitration,  (q)  2  Atk.  396;  6  Ves.  594,  596; 

entered  into  after  bill  filed,  see  Dry-  2  Ves.  &  B.  364 ;  and  see  Allardes 

den  V.  Robinson,  2  Sim.  &,  Stu.  529;  v.  Campbell,  rep.  1  Turn.  133,  note ; 

and  see  Rowe  v.  Wood,  1  Jac.  &  W.  -S.  C.  Bunb.  265  ;  Rybott  v.  Barrell, 

348 ;  S.  C.2  Bligh,  P.  C.  595.  2  Eden  R.  131. 

(0)  As  instances,  see  W^artZ  V.  Pe-  (r)  Bower  v.  Swadlin,!  Atk.  294; 
riam,  cited  2  Atk.  396;  2  Ves.  316 ;  Taunton  v.  Pepler,  6    Madd.  166; 

(1)  [As  to  applications  to  enforce  awards,  see  the  case  of  Webster,  1 
Russ.  &  M.  496,  and  note  (a)  there.  For  the  form  of  a  plea  of  an 
award,  see  Willis,  553.] 

(2)  [And  see  Henriclj  r.  Blair,  1  J.  C.  R.  IGl  ;  Shepard  v.  Merrill, 

2  lb.  276  ;  Underbill  r.  Van  Cortlandt,  2  lb.  339  ;  Bouck  v.  Wilber, 
4  lb.  405  ;  Toppan  v.  Heath,  1  Paige's  C.  R.  293  ;  Campbell  c.  Western, 

3  lb.  124  ;  Fitzpatrick  v.  Smith,  1  Desau,  245  ;  Atwyn  v.  Perkins,  3 
lb.  297  ;  Shermer  v.  Beale,  1  Wash.  11  ;  Pleasants  v.  Ross,  lb.  156  ; 
Morris  v.  Russ,  2  Hen.  &  Munf.  408  ;  Davy's  Executors  r.  Shaw,  7 
Cranch,  171.] 

(3)  To  a  bill  by  a  husband  and  wife  for  property  limited  to  the  sepa- 


8.  II.  P.  II.]  PLEAS.  305 

and  this  will  apply  to  a  bill  praying  that  the  release 
may  be  set  aside  (s).  In  a  plea  of  a  release  the 
defendant  must  set  out  the  consideration  upon 
which  the  release  was  made  (t).  A  plea  of  a  re- 
lease therefore  cannot  extend  to  a  discovery  of  the 
consideration  ;  and  if  that  is  impeached  by  the  bill, 
the  plea  must  be  assisted  by  averments  covering  [262] 
the  grounds  on  which  the  consideration  is  so  im- 
peached  (2).  Thus,  to  a  bill  stating  various  tran- 
sactions between  the  defendant  and  the  testator  of 
the  plaintiff,  and  imputing  to  those  transactions 
fraud  and  unfair  dealing  on  the  part  of  the  defend- 
ant, and  impeaching  accounts  of  the  transactions 
delivered  by  the  defendant  to  the  testator  on  the 
ground  of  errors,  omissions,  and  unfair  and  false 
charges,  and  also  impeaching  a  purchase  of  an 
estate  conveyed  by  the  testator  to  the  defendant  in 
consider.'.tion  of  part   of  the   defendant's  alleged 

Clarke  v.  Earle  of  Ormonde,  1  Jac.  by  ai>    answer  to  the    same    effect, 

R.  116.     And  see  Roche  v.  Morgell,  Lloyd  v.  Smith,  1   Anstr.   Exch.  R. 

2  Sch.  &,  Lefr.  721.  258;  Freeland  v.  Johnson,  1   Anetr. 

(s)    Pusey    V.  Desbouverie,  3    P.  Exch.  R.  276  ;    Walter  v.  Glanville, 

Wins.  315.     And  with  regard  to  this  5  Bro.  P.  C.  555,  Toinl.  Ed.;  2  Sch. 

Iatterpropo8ition,it  may  be  remarked,  &,  Lefr.  727;  6  Mad.  64;  2  Sim.  & 

that  it  is  in  like  manner   necessary  Stu.  279  (1). 

that  the  defendant  should  deny  the  (t)  Gilb.  For.  Rom.  57  ;  Griffith  v. 

equitable  circumstances  charged  for  Jtf««ser,  Hardr.  168  ;  2  Sch.  &.  Lefr. 

the  purpose  of   impeaching    the  re-  728;  and  see  Walter  v-  Glanville,  5 

lease,  by  averments  in  his  plea,  and  Bro.  P.  C.  555,  Toml.  Ed. 


rate  use  of  the  wife,  a  pica  of  a  release  by  the  husliand  is  a  good  plea.  Pics  of  relaM* 
Stooke  V.  Vincent,  1  Coll.  5:27.  hfg'wifo'i  pro- 

(1)  See  also  Parker  v.  Alcock,  1  Y.  &  J.  432.  P"'y 
[See  the  form  of  such  a  plea,  Willis,  656.] 

(2)  [And  see  Allen  v.  Randolph,-^  J.  C.  R.  693  ;  Bolton  v.  Gardner, 
3  Paige's  C.  R.  273;  also  (but  which  wa.s  the  case  of  an  answer,) 
Bavies  v.  Spurling,  1  Tainlyn's  R.  199.] 


§05  PLEAS.  [Chap.  IT. 

demands,  and  praying  a  general  account,  and  that 
,  the  purchase  of  the  estate  might  be  set  aside  as 
fraudulently  obtained,  and  the  conveyance  might 
stand  as  a  security  only  for  what  was  justly  due 
from  the  testator's  estate  to  the  defendant ;  a  plea 
306  of  a  deed  of  mutual  release,  extending  to  so  much 

of  the  bill  as  sought  a  discovery,  and  prayed  an  ac- 
count of  dealings  and  transactions  prior  to  and  upon 
the  day  of  the  date  of  the  deed  of  release,  and  all 
relief  and  discovery  grounded  thereupon,  and  sta- 
ting the  deed  to  have  been  founded  on  a  gene- 
ral settlement  of  accounts  on  that  day,  and  to  have 
accepted  securities  then  given  to  the  defendant  for 
the  balance  of  those  accounts  which  was  in  his  fa- 
vour, and  averring  only  that  the  deed  had  been  pre- 
pared and  executed  without  any  fraud  or  undue 
practice  on  the  part  of  the  defendant,  was  overruled. 
The  consideration  for  the  instrument  was  the  gene- 
ral settlement  of  accounts  ;  and  if  those  accounts 
were  liable  to  the  imputations  cast  upon  them  by 
[263]  the  bill  (u),  the  release  was  not  a  fair  transaction 
and  ought  not  to  preclude  the  court  from  decree- 
ing a  new  account.  The  plea  therefore  could  not 
be  allowed  to  cover  a  discovery  tending  to  impeach 
those  accounts,  and  the  fairness  of  the  settled  ac- 
counts was  not  put  in  issue  by  the  plea,  or  support- 
ed by  an  answer  denying  the  imputations  charged 
in  the  bill  (1).  .  The  plea  indeed  was  defective  in 

(m)  Though  an  account  be  stated     relieve.     See  the  cases  cited  above > 
under  hand  and  seal,  yet  if  there  ap-     302,  note  (e). 
pear  any  mistake  in  it,  the  court  will 

(1)  In  an  answer  in  support  of  a  plea,  the  defendant  must  answer 
all  those  matters  in  a  Bill,  whicl>,  if  true,  would  dis|lace  the   plea, 


S.  11.  p.  II.]  PLEAS.  306 

many   other  particulars,  necessary  to   support   it 

against  the  charges  in  the  bill  ;  and  to  some  parts 

of  the  case  made  by  the  bill  the  release  did  not  ex-  307 

tend  (x).     A  release  pleaded  to  a  bill  for  an  account 

must  be  under  seal  (?/)  ;  a  release  not  under  seal 

must  be  pleaded  as  a  stated  account  only  (z)  (2). 

4.  To  a  bill  brouo^ht  upon  a  around  of  equity  by  conveyMc'e,  or 

n  f     ^         o  IJJ    Qfjjg^  instru- 

an  heir  at  law  against  a  devisee,  to  turn  the  devisee  ™«»*- 
out  of  possession,  the  devisee  may  plead  the  will, 
and  that  it  was  duly  executed  (a)  (3).  But  in  cases 
of  this  kind  where  the  bill  has  also  prayed  a  re- 
ceiver, a  plea  extending  to  that  part  of  the  bill  has 
been  so  far  overruled,  as  it  might  be  necessary  for 
the  court  in  the  progress  of  the  cause  to  appoint  a 
receiver  (b).  Upon  a  bill  filed  by  an  heir  against 
a  person  claiming  under  a  conveyance  from  the  an- 
cestor, the  defendant  may  plead  the  conveyance  in  [264] 
bar  of  the  suit.  To  a  bill  by  one  partner  in  trade 
against  his  copartner  for  discovery  and  relief  relative 
to  the  partnership  transactions,  a  plea  of  the  arti- 

(ar)  Roche  v.  Morgcll,  2  Sch.  &  Dotnsing, c\ted2\e8.36l  ;  Meadows 

Lefr.  721  (D.  v.  Dnck.  of  Kingston,  Mich.  1777, 

(y)   But    it   need    not    be    signed,  reported  Ambl.  756 ;  .3  IVIeriv.  171. 
Taunton  v.  Pepler,  G  Madd.  166.  (6)  Anon.  2  Atk.  17,  and  Meadows 

r^    (z)  Gilb.  For.  Rom.  57.  v.  Duch.  of  Kingston.      But  see  2 

(«)  Anon.  3  Atk.    17 ;    Anstis  v.  Ves.  362,  363. 


whether  the  bill  does  or  does  not  expressly  charge  those  matters  to  be 
evidence  of  the  facts  to  uliich  the  plea  relates.  Chadivick  v.  Broad- 
wood,  3  Beav.  630. 

(1)  [And  see  BoUon  v.  Gardner, 3  Paige's  C.  R.  273.] 

(2)  The  correct  mode  of  pleading  a  release  in  bar  of  an  account  la 
to  state  it  as  being  under  seal  ;  but  it  would  seem  that  this  is  not  in- 
dispen.-^ahlo.     Phdps  v.  Sprowlr,  1  My.  &.  K.  231. 

(3)  [See  the  form  of  such  a  plea,  Willis,  65i) ;  and  ob-serve  the  latter 
part  of  note  (6)  there.  For  another  forni  of  this  species  of  plea,  see 
Equity  Draft.  118.] 


307  PLEAS.  [Chap.  II. 

cles  of  partnership,  by  which  it  was  agreed  that  all 
differences  which  might  arise  between  the  partners 
should  be  referred  to  arbitration,  and  that  no  suit 
should  be  instituted  in  law  or  equity  until  an  offer 
should  have  been  made  ta  leave  the  matter  in  dif- 

308  ference  to  arbitration,  and  that  offer  had  been  refus- 
ed, has  been  allowed  (c).  This  case  has  been  much 
questioned ;  and  it  now  seems  to  be  determined 
that  such  an  agreement  cannot  be  pleaded  in  a 
bar  of  suit  (d),  nor  will  the  court  compel  a  specific 
performance  of  the  agreement  (e).  Indeed  it 
seems  impossible  to  maintain  that  such  a  contract 
should  be  specifically  performed,  or  bar  a  suit,  un- 
less the  parties  had  first  agreed  upon  the  previous 
question,  what  were  the  matters  in  difference,  and 
upon  the  powers  to  be  given  to  the  arbitrators, 
amongst  which  the  same  means  of  obtaining  disco- 
very upon  oath,  and  production  of  books  and  papers, 
as  can  be  given  by  a  court  of  equity  might  be  es- 
sential to  justice.     The   nomination  of  arbitrators 

[265]  also  must  be  a  subject  on  which  the  parties  must 
previously  agree  ;  for  if  either  party  objected  to  the 
person  nominated  by  the  other,  it  would  be  unjust 
to  compel  him  to  submit  to  the  decision  of  the  per- 
son so  objected  to  as  a  judge  chosen  by  himself. 
It  must  also  be  determined  that  all  the  subjects  of 
difference,  whether  ascertained  or  not,  must  be  fit 
subjects  for  the  determination  of  arbitrators,  which, 

(c)    Hal/hide  v.  Penning,  2  Bro.  St.rept  v.  Righy,  6  Ves.  Jiin.   815  ; 

C.    C.  336;    Contra,   Wellington  v.  14  Ves.  270;   Waters  v.  Taylor,  15 

Mackintosh,  2  Atk.  569.  Ves.  10. 

(rf)  Satterly  v.  Robinson,    Exch.  (e)  6  Ves.  Jun.  818;  Aftines  v.  Gcry, 

17  Dec.  1791 ;  Michell  v.  Harris,  4  14  Ves.  400. 
Bro.  C.  C.  311 ;  S.  G.  2  Ves.  Jun.  129  ; 


S.  II.  p.  II.]  PLEAS.  308 

if  any  of  them  involved  important  matter  of  law, 
they  might  not  be  deemed  to  be. 

5.  The  statute  for  prevention  of  frauds  and  per-    5.  piea  of  ti>« 
juries  (/)  (1)  may  be  pleaded  in  bar  of  a  suit  to 
which   the   provisions    of  that   act  apply  (g)  (3).  309 

This  form  of  pleading  generally  requires  negative 
averments  to  support  the  defence  (h).  Thus,  to  a 
bill  for  discovery  and  execution  of  a  trust,  the  sta- 

(/)  29  Car.  11.  c.  3.  Edwards,  4  Ves.  23  ;  Bowers  v.  Ca- 

{g)  Gilb.  For.  Rom.  61 ;  Bawdes  tor,  4  Ves.  91  ;    2  Vee.    &,  B.  364. 

V.    Amhurst,    Prec.    in    Cha.     402 ;  And  where   there  are  not  equitable 

O'Reilli/   V.   Thompson,  2    Cox,  R.  circumstancesstated  in  the  bill,  which 

C71 ;  Gunter  \.  Halsey,  Ambl.  586 ;  migiit  operate  to  prevent    the  relief 

Jordan  v.  Sawkins,  3  Bro.  C.  C.  388  ;  sought  by  the  plaintiff  being  barred 

S.  C.  1  Ves.  Jun.  402 ;  (2)  Main  v.  by  the  statute,  but  tlie  agreement  is 

Melhourn,  4  Ves.    720.      As.  to  the  alleged  to  have  been  in  writing,  and 

equitable  grounds  upon  which  a  case  facts  are  charged  in  evidence  thereof, 

may  be  exempted  from  the  operation  negative  averments  are  also  requisite 

of  the  Statute  of   Frattds,  see  3  Ves.  to  the  defence.     Evans  v.  Harris,  1 

38,  note  (a) .  Vee.  &  B.  361  ;  and  see  Jones  v.  Da- 

(h)    Stewart  v.  Careless,  cited  2  vis,  16  Ves.  262. 
Bro.  C.  C.  565  ;  Dick.  42  ;  Moore  v. 


(1)  And  see  2  Revised  States  of  New- York,  134,  135,  301.  For  the 
form  of  a  plea  of  the  statute  of  frauds,  to  a  bill  for  specific  performance, 
see  Equity  Draft.  1T)7,  (2d  edit.)  ;  but  observe  the  note  there, 
whereby  it  appears  that  this  plea  was  overruled  and  directed  to  stand 
for  an  answer  ;  and  see  the  text  at  page  267,  post.  There  is  another 
precedent,  being  in  bar  to  so  much  of  a  bill  as  sought  to  compel  the 
specific  performance  of  a  parol  agreement  for  a  lease.  2  Equity 
Draft,  112,  (2d  edit.)]. 

(2)  [Harris  V.  Knickerbocker,  on  appeal,  5  Wendell's  R.  638;  <S.  C. 
1  Paige's  C.  R.  209.] 

A  party  to  avail  himself  of  the  statute  of  frauds,  must  plead  it  or 
rely  on  it  in  some  form.  Thornton  v.  Henry,  2  Scammon's  III.  Rep. 
219. 

When  a  plea  of  the  statute  of  frauds  is  overruled,  if  the  defendant 
then  files  his  answer, he  waives  and  withdraw.s  his  plea;  and  has  no 
longer  any  right  to  insist  on  the  statute  as  a  defence.  Keatts  v.  Rec- 
tor, 1  Arkansas  Rep.  391. 

(3)  [But  see  page  267,  pos/.] 


809  PLEAS.  [Chap.  II. 

tute,  with  an  averment  that  there  was  no  declara- 
tion of  trust  in  writing,  may  be  pleaded  (^),  though 
in  the  case  cited  the  plea  was  overruled  by  an  an- 

[266]  swer,  admitting,  in  effect,  the  trust.  To  a  bill  for 
a  specific  performance  of  agreements,  the  same 
statute,  with  an  averment  that  there  was  no  agree- 
ment in  writing  signed  by  the  parties,  has  been  also 
pleaded  (k).  It  has  been  understood  that  this  plea 
extended  to  the  discovery  of  a  parol  agreement,  as 
well  as  to  the  performance  of  it,  except  where  the 
agreement  had  been  so  far  performed  that  it  might 
be  deemed  a  fraud  on  the  party  seeking  the  bene- 
310  fit  of  it,  unless  it  was  completely  carried  into  ex- 

ecution (I),  and  cases  have  been  determined  ac- 
cordingly (m).  This  has  of  late  been  the  subject 
of  much  discussion,  and  some  contrariety  of  deci- 
sion. In  one  case  (n)  the  court  appeared  to  have 
conceived  that  the  courts  of  equity  in  determining 
cases  arising  upon  this  statute  had  laid  down  two 
propositions  founded  on  rules  of  equity,  and  had 
given  a  construction  to  the  act  accordingly,  which 
amounted  to  this,  that  the  act  was  to  be  construed 
^    as  if  there  had  been  an  express  exception  to  the 

r2671  extent  of  those  rules  in  favour  of  courts  of  equity, 
and  that  no  action  was  to  be  sustained  except  upon 

(t)  Cottington  v.  Fletcher,  2  Atk.  Morphett  v.  Jones,  1    Svvanst.  172, 

156.  and  the  authorities  therein  referred  to. 

(k)  Mussell   V.    Cooke,    Free,   in         (m)  Mollis  v.  Whiteing,  1  Vern. 

Chan.  533  ;  Child  v.  Godolphin,  cited  151 ;   Whaley  v.  Bagnal,  1  Bro.  P.  C. 

2  Bro.  C.  C.  566 ;  «■.  C.  Dick,  39  ;  345,  Toml.  Ed. ;  and  see  Whitbread 

Child  V.  Comber,  3  Swanst.  423,  n. ;  v.  Brockhurst,  1  Bro.C  C.404 ;  S.  C. 

Hawkins  V.  Holmes,  1  P.  Wms.  770;  2  Ves.  &.  Bea.  153,  u. ;  Whitchurch 

Clerk  V.  Wright,  1  Alk.  12.  v.  Bevis,  2  Bro.  C  C.  559. 

(l)  That   this  is  the    construction         (n)   Whitchurch  v.  Bevis,  in  Chan, 

put  upon  acts  of  part  performance,  8  Feb.  1786,  reported  2  Bro.  C.  C 

see  1  Sch.  &  Lefr.  41 ;  3  Meriv.  246  ;  559. 


S.  II.  p.  II.]  PLEAS.  310 

an  agreement  in  writing,  signed  according  to  the 
requisition  of  the  .statute,  and  except  upon  bills  in 
equity,  where  the  party  to  be  charged  confessed 
the  agreement  by  answer,  or  there  was  a  part  per- 
formance of  the  agreement.  It  was  therefore  de- 
termined that  to  the  fact  of  the  agreement  the  de- 
fendant must  answer.  But  the  court,  afterwards 
upon  a  rehearing,  allowed  the  plea  (o).  In  sub- 
sequent cases  this  subject  was  much  discussed, 
and  the  question  was  particularly  considered,  whe- 
ther, if  the  defendant  admitted  by  answer  the  fact  311 
of  a  parol  agreement,  but  insisted  on  the  protec- 
tion of  the  statute,  a  decree  could  be  pronounced 
for  performance  of  the  agreement  without  any 
other  ground  than  the  fact  of  the  parol  agree- 
ment thus  confessed.  At  length  it  seems  to  have 
been  decided,  that  though  a  parol  agreement  be 
confessed  by  the  defendant's  answer,  yet  if  he  in- 
sists on  the  protection  of  the  statute  no  decree 
can  be  made  merely  on  the  ground  of  that  con- 
fession (p)  ;  and  it  may  now  apparently  be  con- 

(0)  Whitchurch  v.  Bevis,  on  re-  (p)  1  Bro.  C.  C.  416  ;  Whitchurch 
hearing,  Hil.  vac.  178D,  principally  v.  Bevis,  2  Bro.  C.  C.  559  ;  4  Vea. 
on  the  authority  of  Whaley  v.  Bag.  Jun.  23, 24 ;  6  Ws.  37  ;  12  Ves.  471 ; 
nal,  1  Bro.  P.  C.  345,  Toml.  Ed.  15  Ves.  375  (1). 

(1)  [In  a  suit  for  a  specific  performance  of  a  contract  in  relation  to 
land,  if  the  bill  states  that  an  airreement .was  made,  on  demurrer  to  the 
bill,  the  contract  will  be  presumed  to  have  been  reduced  to  writing  and 
signed  by  the  parties  or  their  agents,  unless  the  contrary  appears.  If 
the  agreement,  however,  appears  in  the  bill  to  have  been  a  parol 
agreement  and  no  facts  are  alleged  to  take  the  case  out  of  the  statute, 
the  defendant  may  demur  to  the  bill.  Cozine  v.  Graham,  2  Pa'ge's 
C.  R.  177;  2  Revised  Statutes  of  N.  Y.  134,  135.  And  for  ca^e-s  of 
parol  agreements  and  part  performance,  see  among  others,  Welmore  v. 
White,  2  C.  C.  E.  87,  (sed  vide,  Jackson,  ex  dem  Smith  v.  Pierce,  2  J. 
R.  221);  Phillips  v.   Thompson,!  J.  C.  R.  131  ;  Parhhurst  v.  Van 


311  PLEAS.  [Chap.  II. 

eluded  that  a  plea  of  the  statute  cannot  in  any 
case  be  a  bar  to  a  discovery  of  the  fact  of  an 
agreement ;  and  that  as  the  benefit  of  the  statute 
may  be  had  if  insisted  on  by  answer,  there  can  be 
r2681  ^^  "®^  ^^  pleading  it  in  bar  of  relief.  Whether 
the  same  rule  would  be  applied  to  a  confession  of 
a  trust  by  an  answer,  which  may  be  considered  as 
a,  declaration  of  the  trust  in  writing,  signed  by  the 
party,  as  indeed  the  confession  of  a  parol  agree- 
ment by  answer  might  also  be  deemed,  seems  to 
be  an  important  question,  not  agitated  in  the  cases 
decided  with  respect  to  other  agreements,  and  up- 
on which  it  may  be  very  difficult  to  make  a  satis- 
factory distinction.  In  the  cases  in  which  it  was 
formerly  considered  that  a  plea  of  this  statute  was 
the  proper  defence,  it  was  conceived  that  any  mat- 
ter charged  by  the  bill  which  might  avoid  the  bar 
created  by  the  statute  must  be  denied,  generally, 
by  way  of  averment  in  the  plea,  and  particularly 
and  precisely  by  way  of  answer  to  support  the  plea. 
gj^g  But  according  to  one  case  (q),  if  any  such  matter 

were  charged  in  the  bill  it  became  impossible  to 
plead  the  statute  in  bar ;  the  court  having  deter- 
mined that  denial  of  the  matter  so  charged  made 
the  plea  double  (r),  and  therefore  informal ;  and 
it  may  now  be  doubtful  whether  a  plea  of  the  sta- 
tute ought  in  any  case  (except  perhaps  the  case  of 
a  trust)  to  extend  to  any  discovery  sought  by  the 

(q)   Whithread   v.  Brockhurst,   1         (r)  On  the  subject  of  double  pleas, 
Bro.  C.  C.  404 ;  S.  C.  2  Ves.  &  B.     see  hereafter,  pp.  343,  344. 
153,  note. 


Cortlandjih.  273;  and  also  note  of  cases  at  page  119,  an^e;  and  Eng- 
lish cases  well  collected  in  Blunt's  Ambler,  p.  585,  note  (2).  . 


S.  II.  p.  II.]  PLEAS.  312 

biil,  and  indeed  whether  it  ought  not  to  be  deem- 
ed a  needless  and  vexations  proceeding  if  con- 
fined to  relief  («). 

The  statute  for  hmitation  of  actions  (t)  is  like-     [269]  - 
wise  a  good  plea  (u)  (1).     But  if  the  bill  charges  futeonl^tt" 

tiona. 
(j)  As  to  the  effect  of  iusistiug  on'  (i)  21  Jac.  I.  c.  16. 
the  statute  by  answer,  or  by  plea,  and  (u)  Gilb.  For.  Rom.  Gl ;  Wye  ft  v. 
wiiether  necessary,  see  Newton  ^.  East  India  Comp.,  3  P.  Wms.  309  ; 
Preston,  Free,  in  Chan.  103.  See  ^acojj 'v.  Lacon,  2  Atk.  395  ;  Earl  of 
also  Kirk  and.  Webb,  Free,  in  Chan.  Strafford  v.  Blakeway,  6  Bro.  F.  C. 
84.  And"see  Rowev.  Teed,  15  Ves.  G30,  Toml.  Ed.;  Barber  v.  Barber, 
372;  18  V6S.  182;  Morphettv.Jones,   -18  Ves.  286,  and"  the  cases  therein 

1  Swanst.,  172.    \Cozine  v.  Bleaker,,    cited. 

2  Paige's  C.  R.  177.] 


'  (1)  A  new  statute  of  limitafions  (3^&'4  W.IV.  c.  27)  has  been 
parsed ;  but  it  Jnly  applies  to  real  property,  and  to  money  charged 
ujion  or  payable  out  bf  real  estate,  and  to  legacies.  Tliia  statute  ex- 
pressly extends  to  suits  in  equity.  (See  sect.  24.)  It  has  befen 
amended  by  stat.  7  WflV:  and  1  Vict.  c.  28. 

The  statute  ofiimitations  may  be  pleaded  in  bar  to  a  bill  to  prevent 
the  selling  up  of  an  outstanding  terin.     Jermy  v.  B''.st,  1  Sim.  373. 

[S(?e  the  form,  of  such  a  plea,  Willis,.  562. '  And  observe  the  note  at 
page  273,  fost.  For  other  forms,  see  Equity  Draft.  113,  114;  Beames 
on  Pleas,  .161.]  ■ 

The  rule  is  well  settled  in  England  and  in  this  country  that  effect 
will  be  given  ta  the  statute  of  limitations  in  equity,  the  same  as  at 
law.  The  principle  is  well  established  and  generally  sanctioned  in 
courts  of  equity,  that  by  analogy  the  statute  of  limitations  is  a  bar  to 
an  equitable  right  when  at  law  it  would  operate  against  a  grant.  At 
law,  it  operates  where  conflicting  titles  are  adverse  in  their  origin  and 
no  reason  is  perceived  -against  giving  the  statute  the  same  effect  in 
equity.     Miller  v.  Mclnlire,6  Peters,  65—67, 61. 

•Held  in  Kane  v.  BlooJgood,!  Johns.  Cli.  R,  90;  that  the  statute 
applies  to  legacy,  since  a  remedy  at  law  was  given  by  statute  to  re- 
cover legacies  and  distributive  shares.  But  such  is  not  the  Jaw  in 
England.  Chancellor  Kent  went  further  than  had  been  adventured 
and  overturned  a  number  of  his  previous  decisions.  King  v.  Execu- 
tors of  Perry,  2  Green  C.  R.  64; 

The  plea  of  the  statute  of  limitations  is  a  defence  not  to  be  favored. 
As  a  general  rule  it  is  inequitable,  not  favored,  and  the  court  will  lend 
its  aid  to  effect  a  trial  on  the  merit.s  when  it  will  set  at  least  passive, 
while  a  defendant  asks  its  assistance  to  close  the  door  against  Bucb 

26 


312  PLEAS.  [Chap.  IL 

a  fraud,  and  that  the  fraud  was  not  discovered  (x) 
till  within  six  years  before  filing  the  bill,  the   sta- 

313  tute  is  not  a  good  plea,  unless  the  defendant  de- 
nies the  fraud  (y),  or  avers  that  the  fraud,  if  any, 
was  not  discovered  within  six  years  before  filing 
the  bill  (z).  And  though  the  statute  of  limitations 
is  a  bar  to  the  claim  of  a  debt,  it  was  formerly  de- 
termined not  to  be  a  bar  to  a  discovery  when  the 
debt  became  due ;  for  if  that  had  been  set  forth, 
it  would  appear  to  the  court  whether  the  time  limi- 
ted by  the  statute  was  elapsed  (a),  but  later  deci- 
sions have  been  to  the  contrary  (/>).     These  de- 

(a:)  See  2  Seh.  &,  Lefr.  631  and  Brockhurst,  1  Bro.  C.  C.  404 ;  and  2 

633,  and    following    pages,  and  the  Ves.   &  B.  153,  n.  ;    this  should  be 

cases  therein  cited,     and  2  Ball  &  B.  considered  a  doutle  plea. 

118.  (a)   Mackworth  V.  Clifton,  2  Wk. 

(y)    Bicknell^-v.    Gough,  3    Atk.  51  ;  2  Sch.  &.  Lefr.  635. 

558.  (1).  (by    Sutton    v.    Earl    of     Scar- 

(z)    South    Sea    Comp.    v.    Wy-  borough,  9  Ves.   Juu.   71,  and   other 

iw^rndsell,  3  P.  Wms.   143  ;    Sutton  authorities    there    cited.      And    see 

V.  Earl  of  Scarboroi  gh,  9  Ves.   71.  Baillie    v.    Sibbald,  15    Ves.   185  ; 

But    according     to     Whitbread     v.  Cork  v.  Wilcock,  5  Madd.  328. 

inquiry  and  to  avail  himself  of  his  own  laches  in  not  paying  the  debt 
by  the  bar  imposed  by  the  statute  unless  he  avail  himself  oLsuch  plea 
within  the  rule  day.     Ibid. 

The  p'.ea  must  in  itself,  if  true,  contain  a  complete  bar.  It  should 
not  be  a  naked  plea  of  the  statute  of  limitations,  but  should  contain 
averments  negativing  the  special  matters  setup  in  the  bill  which  if 
true  would  avoid  the  operation  of  the  statute  ;  and  the  answer  in  sup- 
port of  the  plea  should  also  contain  a  full  discovery  of  the  matters  so 
set  up  in  avoidance  of  the  bar.  It  is  not  sufficient  for  the  answer 
alone  to  negative  such  matters  ;  for  it  is  mere  matter  of  discovery  ;  but 
the  plea  should  in  itself,  if  true,  contain  a  complete  bar.  This  is  stated 
at  large  by  Lord  Redesdale,  in  his  excellent  work  on  Equity  Pleading. 
Stearns  v.  Page,  1  Story  R.  212.  After  issue  made  up,  or  if  defendant 
be  in  default,  he  is  not  al'owed  to  put  in  the  plea,  unless  under  peculiar 
circumstances.  Streets  v.  Baldicin's  Adminslrator,  12  Ohio  R.  131.  120 

(1)  [Goodrich  v.  Pendleton,  3  J.  C.  R.  3&4  ;  and  see  Mihes  \. 
Cowley,  4  Price,  103.] 


S.II.  p.  II.]  PLEAS.  313 

cisions  are  stated  to  have  been  founded  on  a  rule 
adopted  of  late  years,  that  where  a  demurrer  to 
rehef  would  be  good,  the  same  ground  of  demur- 
rer would  extend  to  the  discovery  on  which  the  re- 
lief prayed  was  founded;  and  applying  this  rule, 
originally  confined  to  demurrers,  to  pleas  also  (r).  [270] 
It  may  be  doubted  whether  in  this  extension  of 
the  rule  to  pleas,  the  difference  between  a  plea  and 
demurrer  has  been  sufficiently  considered.  A  de- 
murrer founds  itself  on  the  bill,  and  asserts  no 
matter  of  fact  the  truth  of  which  can  be  disputed. 
A  plea,  on  the  contrary,  asserts  a  fact  the  truth  of 
which  is  put  in  issue  by  the  plea.  When,  there- 
fore the  statute  of  limitations  is  pleaded  to  a  de- 
mand, and  the  question  to  be  tried  on  the  issue  314 
joined  upon  the  plea  is,  whether  the  debt  became 
due  within  six  years  before  the  filing  of  the  bill, 
it  is  denying  the  plaintifl"  the  benefit  of  that  disco- 
very in  aid  of  proof  which  is  allowed  in  all  other 
cases,  to  hold  that  a  plea  of  the  statute  of  limita- 
tions, with  an  averment  that  the  cause  of  action, 
if  any,  occurred  six  years  before  the  filing  of  the 
bill  will  be  a  bar  t )  a  discovery  of  the  truth  of  that 
averment  (d).  In  the  case  of  money  received  by 
the  defendant  for  the  use  of  the  plaintiff,  and 
where  the  sums  received,  as  well  as  the  times 
when  they  were  respectively  received,  may  rest  in 
the  knowledge  of  the  defendant  only,  it  may 
amount  to  a  complete  denial  of  justice  to  hold  that 
a  plea  of  the  statute   of  liiiiitations,  with  such  an 

(c)  See  the  distinction  taken  on  (d)  This  argument  is  supported 
the  subject,  in  James  v.  Sadgruve,  by  Cork  v.  Wilcock,  5  Madd.  328  ; 
1  Sim.  &  Stu.  4.  and  1  Sim.  &l  Stu.  6. 


314  PLEAS.  [Chap.  II. 

averment,  is  a  bar  to  any  discovery  as  to  the  sums 
received,  and  when  received,  and  of  whom,  and  as 
to  entries  in  books,  and  other  papers,  which  the 
discovery  might  enable  the  plaintiff  to  prove  the 
[271]  falsehood  of  the  plea  by  witnesses  and  production 
of  papers,  as  well  as  by  the  defendant's  answer. 
Where  a  particular  special  promise  is  charged  to 
avoid  the  operation  of  the  statute. (rZ),  the  plain- 
tiff-must  deny  the  pron^ise  charged  by  averment 
in  the  plea  {e),  as  well  as  by  answ^er  to  support 
the  pica  (f).    .Where  the  demand  is  of  any  thing 

315  executory,  as  a  note  for  payment  of  an  annuity,  or 
of  money  at  a  distant  period,  or  by  instalments, 
the  defendant  must  aver  that  the  cause  of  ac- 
tion {g)  hath  not  accrued  within  six  years,  because 
the  statute  bars  only  as  to  what  was  actually  due 
six  years  before  the  action  brought  (Ji)  (2).  Up- 
on a  bill  for  discovery  of  a  title,  charging  fraud, 
and  praying  possession,  the  statute  of  limitations 

{(l)  See  Andrews  V.  Broicn,  Free.         {g)  2  Strange,  1291.- 
iaCiia.  385.  '        ■'  (A)  3  Atk.71.     See  above.p.  3J3, 

(e)  Anon.  3   Atk.   70.     But  this,  note  («).     And  see  the  case  of  ifony 

according  to    Whithrcad  v.    Brock-  v.    Hony,  1    Sim.    &    Stu.    568,  in 

hurst,  1   Bro.  C  C.  404,  would   be  a  which  the   fact  of  ati  intermediate 

double  plea.  (1.)  acknowledgment    of    the    plaintiff's 

(/)  See  on  this  subject,  Bayley  right   having    been    made,  defeated 

V.  Adams,  G  Ves.  586 ;  5  Madd.  330 ;  the  j^ea. 
and  1  Si(n.  &  Stu.  6.  .  , 


(1)  [See  Kane  v.  Blwdgood,  '7  J.  C.  R.  90.]     But  see  p.  312,  n. 

(2)  Where  a  suit  for  an  account  of  rents  and  profits  has  abated 
before  decree  by  the  death  of  the  plaintiff,  and  a  bill  of  revivor  is 
not  filed  till  a  lapse  of  more  than  six  years  from  the  time  of  the 
abatement,  a  plea  of  the  statute  of  limitations,!  Jac.  l,c.  16,  will  be 
overruled,  if  it  does  not  state  that  six  years  have  elapsed  since  repre- 
sentation was  taken  out  to  the  plaintiff.  Perry  v.  Jenkins,  1  My.  & 
C.  118. 


.^ 


S.  II.  p.  II.]  PLEAS.  315 

alone  is  not  a  good  plea  to  the  discovery,  so  far  as 
the  charge  of  fraud  extends,  for  the  defendant 
must  answer  to  the  charge  of  fraud  (i),  and  the 
plea  must  put  the  fraud  in  issue  (1).  The  statute 
of  limitations  may  be  pleaded  to  a  bill  to  redeem 
a  mortgage  (k)  (2)  if  the  mortgagee  has  been  in  316 

possession  twenty  years  (/) ;  and  indeed  a  demur-     i"'^] 
rer  has  been   allowed  in  this   case  (m)  where  the 
possession    has  appeared    upon  the   face   of  the 
bill  (n),  though  some  cases  seem  to  be  to  the  con- 
trary (o)  (4).     To  a  bill,  on  an  equitable  title  to 

(t)    Bicknell    v.    Gough,  3    Atk.  ITVes.  »7,99;  19Ve8.  184;  2  Jac. 

558 ;  2  Sch.  &-  Lefr.  635.  &   W.  145,  187  ;  and  Bee  Blewit  v. 

(k)  On  the  question  whether  the  Thomas,  2  Wes.  Jan.  Q69. 

statute  itself  applies  to  a  case  of  this  (/)    Aggas    v.    Pickerell,  3   Atk. 

kind,.or  whether  the  rule  that  twenty  225  ;  2  Ves.  Jun.  280  (3). 

years'  posseBsion  by  the  mortgagee,  (m)  3   P.  Wins.  287,  note.     See 

subject  to  the    usual  exceptions    of  also   1   Vern.  418,  and    Beckford  v. 

infancy,  Sec.,  without  his  doing  any  Tobin,&h.  p.  213,  n. ;  2  Sch.  &  Lefr. 

act  which   is  to  be  regarded  as   an  638.     And  see   Hodl  e   v.   Henley,  1 

acknowledgment  that  the  relation  of  Ves.  &  B.  536,  and  the  cases  therein 

debtor  and  creditor  still  subsists,  has  cited. 

been   adopted  iu  courts  of  equity,  in  (n)    Edaell   v.    Buchanan,  4    Bro. 

conformity  with  the  provisions  of  the  C.  C.  254. 

statute,  see  1  Cox,  R.  149  ;  2  Sch.  &  (o)  3  Atk.  225,  226,  and   the   au- 

Lefr.  630,  632  ;  1  Ball  &,  B.  167  ;  thorities  there  cited- 

(1)  [And  see  the  decision  of  Chancellor  Walworth,  in  Bogardus  v. 
Rector,  <$-c.,  of  Trinity  Ch.  4  Paige's  C.  R.  178,  There  is  no  limi- 
tation iu  point  of  time,  within  which  a  bill  for  discovery  in  aid  of 
an  action  at  law  must  be  filed.     Muni  v.  Scott,  3  Price,  477.] 

(2)  As  a  foreclosure  suit  is  in  substance  a  suit  for  the  recovery 
of  the  money  secured  by  the  mortfraje,  the  statute  of  limitations, 
27  Will.  IV.  c.  27,  8.  40,  may  be  pleaded  to  the  bill.     Dmrman  v. 

Wyche,  9  Sim.  570. 

(3)  [And  see  Elmendorf  \.  Taylor,  10  Wheat.  152.] 

(4)  It  was  formerly  doubted,  but  now  seems  to  be  settled,  that  de- 
fendant may  demur  on  ground  of  lapsf*  of  timp,  where  it  appears  on 
the  bill,  and  need  not  set  up  that  defence  by  plea.  On  bill  for  rents 
and  profits,  where  it  appears  on  bill  the  premises  have  been  held  ad- 
versely by  defendant  for  over  20  years,  defendant  may  demur :    To 


316  PLEAS.  [Chap.  II. 

presentation  to  a  living,  seeking  to  compel  the  de- 
fendant to  resign,  plenarty  for  six  months  before 
the  bill  was  filed  may  be  pleaded  in  bar,  the  sta- 
tute of  Westminster  the  second  (2?)  being  consid- 
ered for  this  purpose  as  a  statute  of  limitation,  in 
bar  of  an  equitable  as  well  as  of  a  legal  right  (q). 
But  if  a  quare  imjjedit  is  brought  before  the  six 
months  are  expired,  though  the  bill  is  filed  after,,  it 
may  be  in  some  cases  a  ground  for  the  court  to  in- 
terfere (r),  and  consequently  plenarty  would  not 
in  such  cases  be  pleadable  in  bar.  The  statute  of 
limitations  may  also  be  pleaded  to  a  bill  of  revivor, 
if  the  proper  representative  does  not  proceed  with- 
in six  years  after  abatement  of  a  suit,  provided 
[273]  there  has  been  no  decree  (s)  (1),  for  a  decree  being 
^17  in  the  nature  of  a  judgment  the  statute  of  limitations 

cannot  be  applied  to  it  {t).  But  where  the  conse- 
quence of  reviving  proceedings  to  carry  a  decree 
into  execution  would  have  been  to  call  on  repre- 
sentatives to  account  for  assets  after  a  sjreat  length 
of  time,  and  under  peculiar  circumstances  of  laches, 

(j))  13  Edw.  I.  c.  5.  (s)    Hollingshead's     case,    1     P. 

(q)  Gardiner    v.     Griffith,    2    P.  Wms-    742 ;     Combers    case,   1    P. 

Wms.  404  ;  3  Atk.  459  ;  Boteler  v.  Wms.  766  ;  2  Sch.  &  Lefr.  633  ;    1 

Allington,  3    Atk.   453.      And   see  Ball  &  B.  531. 

Mutler  t.  Cham-ell,  1  Meriv.  475.  (0    1    P.   Wms,  744  ;   2   Sch.    <fe 

(r)  2  P.  Wilis.  405.  Lefr.  633. 


avoid  which,  if  complainant  come  within  any  of  the  exceptions  in  the 
statute  of  limitations,  he  must  state  the  facts  in  his  bill.  Where  concur- 
rent remedy  exists  at  law  and  in  equity,  time  is  as  absolute  a  bar  to 
discovery  or  relief  in  equity  as  it  would  be  in  a  suit  at  law,  in  analogy, 
to  the  statute  of  limitations.  Humbert  et  al  v.  Rector,  dfC.  of  Trinity 
Church,  7  Paiae's  R.  198,  197, 195.  And  see  Rhode  Island  v.  Massa- 
chusetts, 15  Peters,  21-2.  233. 
(1)  See  note,  p.  315. 


S.  II.  p.  II.]  PLEAS.  317 

a  bill  of  revivor  and  supplement  for  those  purposes 
was  dismissed  (w).  Although  suits  in  equity  are 
not  within  the  words  of  the  statute,  the  courts  of 
equity  generally  adopt  it  as  a  positive  rule,  and 
apply  it  by  parity  of  reason  to  cases  not  within 
it  (x)  (1).     In  general   they  also  hold   that  unless 

(«)  Hercy  v.  Dinwoody,  4  Bro.  C.     Atk.  611  ;  3  Bro.  C.  C.  340,  no'e  ;   1 
C.  257.  Sch.  &  Lefr.  428.  (2). ' 

(x)  Lofd  Mansf.  2  Burr.  961  ;  2 


(1)  See  Baldwin  v.  Peach,  1  Y.  &  C.  Eq.  Ex.  453,  and  note,  p. 
312. 

A  plea  that  the  title  of  the  plaintiff  or  of  the  person  through  whom  riea  of  adverse 
he  claims  accrued  at  a  particular  time,  and  that  the  possession  of  the  specify  the  cir- 
property  and  the  receipts  of  the  rents  and  profits  thereof  have  been  gtlulti'^'^sucb" 
adverse  to  him,  and  the  person  tlirough  whom  he  claims  ever  since  possession,  and 

°  .  deny  possession 

that  time,  will  be  overruled,  if  it  does  not  set  forth  the  circumstances  of  documento 
constituting  such  adverse  possession  ;  because  adverse  possession  may  same."^^"'^ 
consist  in  various  things  ;  and  if  none  of  these  are  specified,  the  plain- 
tiflf  may  have  no  precise  knowledge  of  the  defence  which  he  is  to 
meet.  .And  if  a  defendant  puts  in  a  plea  of  adverse  possession,  and 
the  bill  specifically  charges  that  the  defendant  has  documents^in  his 
possession  which  prove  certain  facts,  and  such  facts,  if  proved, 
would  tend  to  negative  such  adverse  possession,  the  defendant 
must,  deny  tlie  possession  .of  those  documents ;  and  if  the  bill 
•contains  any  other  statement  or  charge  tending  to  negative  |he  plea 
of  adverse  possession,  such  statement. or  charge  must.be  denied. 
Hardmanw.  Ellames,  2  M.  «fc  K.  732. 

But  a  plea  of  the  statute  of  limitations  need    not  negative   the      rioaofsutute 

,  ...  .      J  of  limitations 

usual  seneral  allecration  tiiat  the  deiendint  has  m  Ins  custody  docu-  need  not  nesa- 

ments  relating  to  the  matters  containel  in  the  bill.     Forbes  v.  Sk-Ilon,  ie!,ation"as"to" 

8  Srm.'a25.       .  •  aorumcnt*. 

'  Where  a  bill  contain  an  allegation  of  matter  which  would  remove  Necessity  of  an 

the  h'gal  bar  of  tlie  statute  of  limitations,  if  the  defendant  pleads  the  o7a'^^eaof''ui'c' 

legal  bar,  without  fully  nofrativing  that  aFegation   by  an  answer,  the  statute  of  limita 

plea  will  be  nvprruled.     Foley  v.  Ilill,  3  My.  &  C.  475. 

(2)  [The  principles  of  the  statute  of  limitations,  as  applied  to  suit.s 
in  equity,  are  recognised  by  the  Revised  t^tatutes  of  the  State  of  New- 
York.  Before  such  express  recognition,  tliey  received  the  same  con- 
struction and  application.  Kane  v.  Bloodgood,  7  J.  C.  R.  90  ;  Stafford 
V.  Bryan,  1  Paige's  C.  R.  239  ;  Berlins  v.  Varian,  1  Edwards'  V.  C. 


318  PLEAS.  [Chap.  IL 

the  defendant  claims  the  benefit  of  the  statute  by 
plea  or  answer  he  cannot  insist  upon  it  in  bar  of 


Rep.  343 ; .  Bogardus  v.  Trinity  Church,  4  Paige's  C.  R.  178.  Now, 
it  is  expressly  enacted  that  bills  of  relief  from  fraud  are  to  be 
brought  within  six  years  from  the  discovery.  All  other  bills  for  relief, 
of  which  law  has  not  cognizance,  within  ten  years  after  the  cause  has 
accrued.  There  is  a  sweeping  exception  of  cases  connected  with 
disability  ;  and  the  provisions  are  qualified  so  as  not  to  extend  to  suits 
over  the  subject-matter  of  which  a  court  of  equity  has  peculiar  and  ex- 
clusive jurisdiction,  and  which  is  not  cogn-zable  at  law.  2  R.  S.  301 ; 
and  see  the  case  of  Van  Hook  v.  Whitlock,  3  Paige's  C.  R.  409. 

In  Kentucky,  the  construction  of  the  statute  of  limitations  to  personal 
actions  in  England  is  not  recognised.  Patterson  v.  Brown,  6  Monroe's 
R.  10  ;  but  see  the  three  next  cases.  The  statute  of  limitations  is  a 
bar  in  equity.  M-Dowell  \.  Heath's  executors,  3  A.  K.  Marshall's 
(Kentucky)  R.  223  ;  Brackenridge  v.  Churchill,  3  J.  J.  Marshall's  R. 
16.  It  does  not  apply  totidem  verbis  in  equity,  but  has  been  adopted  as 
reasonable  and  consistent.  Crain  v.  Prather,  4  lb.  77.  This  statute 
operates  as  a  bar  to  a  suit  in  equity  by  its  own  force,  and  not  by  the 
discretion  or  courtesy  of  the  court.  Farnam  v.  Brook?,  8  Pickering's 
(Massachusetts)  R.  212.  It  does  not  apply  to  direct  trusts  resulting- 
from  partnerships,  agencies  and  the  like.  Actual  fraud  discovered,  or 
which  the  complainant  had  means  of  discovering,  more  than  six  years 
before  the  commencement  of  the  suit,  will  not  take  the  case  out  of  the 
statute.  lb.  The  statute  of  limitations  receives  the  same  construc- 
tion, in  analogous  cases,  in  equity  as  at  law.  Lindsay  v.  Bell,  Fin- 
lay's  (Irish)  Index,  368.  And  it  is  a  good  plea  in  bar,  in  equity  as 
well  as  at  law.  lb.  When  a  delay  has  been  such  as  to.be  a  bar  at 
law,  it  will  be  so  in  equity.  Banks  v.  Judah,  8  Day's  (Connecticut) 
R.  145  ;  and  see  McLaren  v.  Pennington,  1  Paige's  C.  R.  100.  Same 
principle  in  the  United  States  courts.  Elmendorf  v.  Taylor,  10 
Wheat.  152;  Miller  v.  M'Intyre,  6  Peters,  61.  If  equity  were  to 
adopt  as  a  general  rule,  that  no  lapse  of  time  would  preclude  its  inter- 
ference, it  would  introduce  a  principle  that  must  work  infinite  mischief 
to  the  peace  and  safety  of  families.  Stratford  v.  Lord  Aldborough,  1 
Beatty's  (Irish)  R.  236.  Yet  see  Ellis  v.  Deane'l  lb.  21.  A  bill 
filed  by  one  creditor  on  behalf  of  himself  and  the  others,  will  prevent 
the  statute  of  limitations  from  running  against  any  of  the  creditors 
who  come  in  under  the  decree.     Slerndale  v.  Hankinson,  1  Sim.  363. 

The  statute  of  limitations,  notwithstanding  it  is  a  defence  at  law, 
may  be  pleaded  to  a  bill  of  discovery  in  aid  of  an  action  brought,  pro- 
vided it  has  been  pleaded  to  the  declaration.  If  the  action  was  com- 
menced  before  ti.e  bill  was  filed,  the  plea  mu>t  aver  that  the  cause  of 


9.  II.  P.  II.]  PLEAS.  318 

the  plaintiff's  demand  (y)  ;  but  notwithstanding, 
the  courts  will,  in  cases  which  will  allow  of  the 
exercise  of  discretion,  use  the  statute  as  a  rule 
to     guide    that    discretion  (z)  ;     and    will    also 

(y)  1  Atk.  494.  (1).  but,  in  respect  of  equitable  titlea  and 

(z)   1  Atk.  494.     Courts  of  equity,  demands,  are  only  influenced  iii  their 

it  seems,  in  respect  of  legal  titles  and  determination  by   analogy  to  it.     1 

demands,  are  bound  by  the  statute,  Sch.  &  Lefr.  428  ;    2  Sch.  «fc.  Lefr. 

a  Sch.  &.  Lefr.  630,  631  ;    and  see  632  ;  10  Ves.  466  ;  15  Ves.  496  ;  17 

Hony  V.  Hony,  1  Sim.  &  Stu.  568  ;  Ves.  97;   1  Ball  &  B.   119,  166;    2 

action  did  not  accrue  within  six  years  before  the  action  was  brought. 
Macgregnr  v.  The  E.  I.  Company,  2  Sim.  452.  Jt  is  a  settled  prin- 
ciple that  equity  follow  tiie  law  ;  and  acting  in  obedience  to  the 
statute  of  limitations,  the  plea  thereof  is  as  available  in  equity  as  at 
law,  in  relatioti  to  tiie  same  subject-matter.  Watkins  v.  H'incond,2 
Gill  &  Johns.  307  ;  Corroll  v.  Waring,  3  lb.  491.  That  is,  where,  as 
between  individuals  at  law,  it  would  have  been  a  bar  ;  and  if  the  fact 
is  on  the  bill,  and  no  c  ircumstances  stated  to  take  it  out  of  the  opera- 
tion of  the  act,  defendant  is  not  bound  to  plead  or  an-wer,  but  may  de- 
mur. Rhode  Island  v.  Massachusetts,  15  Peters,  272,  233  ;  Coulson  v. 
Watson,  9  Id.  62. 

The  law  of  courts  of  equity,  or  rule  adopted  independently  of  any 
positive  legislative  limitations,  is,  tliat  it  will  not  entertain  stale  de- 
mands. Piaft  V.  Fa/^ier,  9  Peters,  415,  416.  'J'he  rule  on  this  subject 
must  be  considered  as  settled  in  that  case,  and  nothing  can  call  a 
court  of  chancery  into  activity,  but  conscience,  go  id  faith  and  reasona- 
ble diligence.  McKnight  V.  Taylor,  I  Howard,  R.  161.  167-8;  Bow- 
man V.  Wathen,  Id.  189.  193-4. 

Every  new  right  of  action  in  equity,  that  accrues  to  a  party,  what* 
ever  it  maybe,  must  be  acted  upon  at  the  utmost  within  20  years. 
Ibid.  This  is  kid  down  by  Lord  Redesdale,  2  Sch.  &.  Lef.  636)  ;  ae 
the  common  law  of  courts  of  equity.  Ibid.  1  How.  193-4.  189.  The 
etatute  of  limitations  may  be  interposed  against  legacies,  if  not 
charged  upon  tiie  land,  as  well  in  equity  as  at  law.  Souzer  v.  De 
Meyer,  2  Paige's  C.  R.  574. 

If  a  sufficient  lapse  of  time  to  create  a  bar  appnars  upon  the  bill, 
there  is  no  occasion  to  support  such  a  plea  with  an  answer.  Carroll 
V.  Wari'g,  3  Gill  Si  Johns.  (Maryland)  R.  491.  The  statiife  of  limi- 
tations may  be  a  bar  to  a  suit  in  equity  by  one  partner  against  another 
for  an  account  and  settlement  of  the  joint  concern.  Atwaler  v.  Fowler, 
I  Edwards'  V.  C.  R.  417.] 

(1)  [Dey  v.  Dunnam,2i.  C.  R.  191  ;  3  J.  J.  Marshall's  R.  186.] 


318  PLEAS.  [Chap.  II. 

sornotimes   resort   to   the   policy   of  the    ancient 
["'^J      law,    which     in     many    cases     limited    the     de- 
mand of  accruing  profits  to  the  commencement  of 
the  suit  (a). 

Plea  of  some  ,  ,.  i  •    i  i  i 

other  statute,        Any  othcr  public  Statute  which  may  be  a  bar  to 

whethergeneral  j  i  j 

or  particular.  ^^  demands  of  the  plaintiff  may  be  pleaded,  with 
the  averments  necessary  to  bring  the  case  of  the 
defendant  'within  .the  statute,  and  to  avoid  any 
equity  which  may  be  set  up  against  the  bar  created 
by  the  statute  (Z»). 

A  particular  statute  may  also  be  pleaded  in  the 
same  manner.  Thus,  to  a  bill  impeaching  a  sale 
of  lands  in  the  fens  by  the  conser\^ators  under  the 
statutes  for  draining  the  fens,  the  defendant  plead- 
ed the  statutes,  and  that  the  sale  was  made  by 
virtue  of  and  according  to  those  statutes,  and  the 
plea  was  allowed  (c). 

equal  rfght"in°      X.  Supposiug  a  plaiutiff  to  haVe  a  full  title  to  the 

the  defendant  to,.^,  iiiVl 

theprotectionof  relief  he  prays,  and  the  defendant  can  setup  no 

■she  court ;  -        \.        J     '  * 

defence  in  bar  of  that  title,  yet  if  the  defendant  has 
an  equal  claim  to  the  protection  of  a  court  of  equity 
to  defend  his  possession,  as  the  plaintiff  has  to  the 
assistance  of  the  court  to  assert  his  right,  the  court 
will  not  interpose  on  either  side  (^).     This  is  par- 

Jac.  &  W.  163,  and  following  pages,  &  Bea.  354;  and  another   example 

particularly  p.  175,  and  2  Jac.  &  W.  of  the  proposition  in  the  text,  Ockle- 

192.  stone  v.  Benson,  2  Sim.  &  Stu.  265. 

(o)  On  this  subject  see  Pulteney,  And   see    De    Tastet   v.    Sbarpe,  3 

V.  Warren,  6  Ves.  73  ;  Pettiward  v.  Madd.  51. 
Prescott,  7  Ves.  541.  (c)    Brown    v.    Hamond,    2    Ch- 

(h)  See  instances  of  a  plea  of  the  Ca.  249. 
statute    of    maintenance,   32    Hen.         (rf)  (1)  See  2  Ves.  Jun.  457,458, 

Vni.  c.  9,  s.  3,  Hitchins  v.  Lander,  and  the  authorities  there  referred  to  ; 
Coop  R.  34;   Wall  v.  Stubbs,^  Ves. 


(1)  See  the  form  of  such  a  plea,  Willis,  566.] 


S.  II.  p.  II.]  PLEAS.  319 

ticularly  the  case  where  the  defendant  claims  under  f  ^r^hasr'of 
a  purchase  or  mortiraffe  for  valuable  consideration  "a^ulbirconlid. 

^  oration,  without 

without  notice  of  the  plaintiff  s  title,  which  he  may  °°ti'=«- 
plead  in  bar  of  the  suit  (e)  (1).     Such  a  plea  must     [275] 
aver  that  the  person  who  conveyed  or  mortgaged 
to  the  defendant  was  seised  in  fee,  or  pretended  to  320 

be  seised  (/)  (3),  and  was  in  possession  (g),  if  the 

and   SCM-.  the   case  of  Gait  v.  Osbal-  7f)3  ;   Sfrode  v.  lilackliourne,  3  Yes. 

destoTi,3  Midd.  428;  S.  C.  1  Russ.  222;    Wallwyn  v    Lre,-^   Ves.  24; 

R.  158.     Cue  exception  has  however  1     Ball    &    B.    171;    2    Ball    &   B. 

been  made  in  £avor.  of  a  dowress,  see  303.  (2). 

Williams  v.  Lambe,  3    Bro.  C.   C.         (/)  3    P.    Wms.   281  ;    Stoty   v. 

264  ;  Payne  v.  Compion,  2  Younge  Lord  Windsor,  2  Atk.  630  ;  17  Ves. 

«fe    Coll.   4S7;    Wood   v.    Mann,  2  250.,  ^ 

Sumuer  C  G.  Rep.  507,  508.  (g)   Trevanian  v.  Mosse,  I   Vera, 

(e)    Fitzgerald  v.  Bark,  2  Atk.  246 ;   3  Vea.  226 ;    9  Ves.  32 ;    16 

397 ;    Story   v.     Lord    Windsor,  2  Ves.  252. 
Atk.  630  ;  Bullock  v.  Sadler,  Ambl. 


(1)  It  is  not  Bufficieiit  for  a  defendant  claiming  to  be  a  hi ^na  fide  pur- 
chaser for  valuable  consideration  without  notice,  to  Heny  personal  know- 
ledge of  the  hiatters  charged,  without  denying  notice,  before  his  contract. 
He  must  deny  notice,  even  though  it  be  not  charged  ;  and  he  must  deny 
it  po-sitively,  and  not  evasively  ;  he  mu.<t  even  deny  it  fully,  and,  in  the 
most  precipe  terms,  every  circumstance  from  wliich  notice  could  be 
inferred.  Wilson  v.  HiUyer  and  Dunn,  Saxton's  (\.  J.)  Ch.  II.  63. 
Gordon  v.  Rockafellow.  •  Opinion  of  Ch.  VVilliamBon,  see  Ilalsted's 
Dig.,  %\  Ed.  vol.  1,  p.  226." 

(2)  The  consideration  of  marriage  will  support  a  plea  of  purchase 
for  valuable  consideration,  without  notice,  equal 'y  with  a  price  paid  in 
money.     Jackson  v.  Rowe,  2  S.  &  S.  472. 

A  plea  of  a  purchase  for  valuable  consideration,  without  notice,  is 
no  protection  against  an  adverse  title  which  would  h  ive  become  known 
to  the  purchaser,  if  he  had  used  reasonable  diligence  in  the  investiga- 
tion of  the  title.     lb. 

(3)  A  plea  of  a  purchase  for  valuable  consideration  without  notice 
must  show  that  if  the  vendor  or  settlor  had  not  a  good  title,  the  party 
purchasing  was  iinpospd  on  at  the  time  of  iiis  purchase.  And  hence 
if  a  plef.  of  this  kind  is  put  in  by  the  heir  at  law  of  one  who  became  a 
purchaser  of  his  wife's  estate  for  a  valuable  consideration  or  under  a 
prenuptial  settlement,  the  plea  naust  aver  that  the  wife  was  seieed,  or 


320  PLEAS.  [Chap.  II. 

conveyance  purported  an  immediate  transfer  of  the 
possession  at  the  time  when  he  executed  the  pur- 
chase or  mortgage-deed  (h).  It  must  aver  a  con- 
veyance, and  not  articles  merely  (i)  ;  for  if  there 
are  articles  only,  and  the  defendant  is  injured,  he 
may  sue  at  law  upon  the  covenants  in  the  arti- 
cles (k).  It  must  aver  the  consideration  (Z)  and 
actual  payment  of  it  ;  a  consideration  secured  to 
be  paid  is  not  sufficient  (m).  The  plea  must  also 
deny  notice  (n)  of  the  plaintiff's  title  or  claim  (o), 
[276]  previous  to  the  execution  of  the  deeds  and  payment 
"^I-  of  the  consideration  (p)  ;  and  the  notice  so  denied 

must  be  notice  of  the  existence  of  the  plaintiff's 
title,  and  hot  merely  notice  of  the  existence  of  a 

(A)  3  P.  Wme.    281.     As  to    the  Atk.  814. 

case  where  the  purchase  is  of  a  re-  (n)  Ou  the  subject  of  notice,  ac- 

version,  see  i/wg-^es  V.  Gar/ A,  Ambl.  tual   and  constructive,  see  Sugden's 

421  ;  S.C.2  Eden  R.  168.  Ven.  &  Purch.  6th  ed.  710. 

(t),   Fitzgerald  v.    Lord  Falcon-  (o)  Lady  Bodmin  v.  Vandebendy, 

bridge,  Fitzg.  207  ;   1  Atk.  571  ;    3  1   Vern.  179  :    Jones  v.    Thomas,  3 

Atk.  377.  P.  Wms.  243  ;  Kelsall  v.  Bennet,  1 

(i)  1  Atk.  571.  Atk.  522. 

(I)  1   Ca.  in  Cha.  34;   Millard's  (/))  Jtfore  v.  Jtfay^oir,  1  Ca.inCha. 

Caae,  2    Freem.   43  ;    Brereton   v.  34;  S.  C.  2  Freem.  175 ;  1  Eq.  Ca. 

Gamnl,  2  Atk.  240.  Ab.  38,  334 ;   Tourville  v.  Naish,  3 

(m)  Hardinghum   v.   Nicholls,  3  P.  Wms.  307 ;  1  Atk.  384  ;  2  Atk. 

Atk.  304;    Maitland  v.    Wilson,  3  63 1 ;  3  Atk.  304.. 

pretended  to  be  seised,  not  only  before,  but  af  the  respective  times  of 
the  execution  of  the  marriage  .'>etllement  and  of  the  marriage.  Jack  - 
son  V.  Rowe,  4  Russ.  514.  In  this  case,  however,  where  the  words 
''  and  at"  were  omitted  after  the  word  "  before,"  by  a  mere  slip,  Lord 
Lyndhurst,  C,  allowed  the  plea  to  be  amended  by  inserting  them, 
Bubject  to  the  making  of  an  affidavit  of  that  fact,  if  required  by  the 
plaintiff.  As  to  the  plea  of  purchase  for  valuable  consideration  with- 
•  out  notice,  see  further  JeweU  v.  Palmer,  7  J.  C.  R.  65 ;  High  v.  Battle, 
10  Yerger's  (TenYi.)  R.  385;  1  Hoff.  Ch.  R.  153,  \63:Flagg  v.  Mann, 
2  Sumner's  C.  C  R.  557  ;  Donnell  v.  King,  7  Leigh's  (Va.;  Rep.  393  ; 
Snelgroie  v.  Snelgrove,  4  Desaus.  Eq.  R.  (So.  Ca.)  287. 


S.  II.  p.  II.]  PLEAS.  3^1 

person  who  conid  claim  under  that  title  (q).  If 
particular  instances  of  notice,  or  circumstances  of 
fraud  are  charged,  they  must  be  denied  as  specially 
and  particularly  as  charged  in  the  bill  (r).  The 
special  and  particular  denial  of  notice  or  fraud  must 
be  by  way  of  answer,  that  the  plaintiff  may  be  at 
liberty  to  except  to  its  sufficiency  (s)  ;  but  notice 
and  fraud  must  also.be  denied  generally  by  way  of 
averment  in  the  plea,  otherwise  the  fact  of  notice  322 

or  of  fraud  will  not  be  in  issue  (t).     Notice  or  fraud     [277] 
thus  putin  issue,  if  proved,  will  effi:^ctually  open 
the  plea  on  the  hearing  of  the  cause. 

iq)   1  Alk.  5:22.     And  it  must  not  (s)  ^non.  2  Ca.  in  Cha»  161 ;  Price 

appear  that  the  defendant,  though  he  v.  Price,  I  Vera.  125;  6  V'es.  596; 

should    c]aini  as  purchaser  under  a  14  Ves.  GG.     It  has  been  lately  de- 

settleraent    executed  at  the  time  of  clared,  that  it  is  not  the  office  of  the 

his  marriage,  might  have  had  notice  plea  to  denyparlicular  facts  of  notice; 

of  tl>e  plaintiff's    tille  by  using  due  but  that  .it  is  sufficient,  where  sudi 

diligence  ia  the   investigation  of  his  facts  are  alleged,  to  make  a  general 

own;  Jackson  V.  Rnwe,  2  ti\n}.&Stu.  denial  wjiich  will  include  construct- 

472;  and  see  Hamilton  v.  Royse,  2  ive  as  well  as  actual  notice:  yet  that 

Schr  &  Lefr.  315  ;  13  Ves.  120  ;  14  if  circumstances  be  specially  charged 

Ves.  433;  6  Dow.  P.  C.  223,  224;  6  as  evidence-of  notice,  they  must  be 

Madd.  59.  denied  by  averments  in  the  plea,  and 

(r)  Radford    v.    Wilson,   3    Atk.  by    an    answer    accompanying    the 

815;  2  Ves.  450;  Jarrard  v.  Saun-  same.     P9itnington  v.  Beechy,  2  Sim. 

ders,  2  Ves.  Jun.  18.7;  S.  C.  4  Bro.  &  Stu.  282  (1). 

C.  C.  322.  .  (t)  Harris  v.  Ingledevs,  3  P.  Wms. 


(1)  Mr.  Justice  Story  in  the  third  edition  of  his  Equity  Pleading,  p. 
-804,  makes  the  following  remark  in  reference  to  this  note  of  Mr.  Jere- 
my :  "  1  do  not  understand  the  vice-chancellor  in  that  ca*e  to  have  held, 
tl^at  the  special  matters,  charged  as  evidence,  should  be  specially  denied 
by  averments  in  the  plea  as  well  as  in  the  answer ;  but  only  that  to  re- 
quire an  answer  to  accompany  the  plea,  the  matters  should  be  specially 
charged  in  the  bill ;  and  should  also  be  specially  charged  as  evidence  of 
notice  of  the  title  of  the  plaintiff.  8ee  on  this  last  point,  the  remarks 
of  Mr.  VVigram,  in  his  points  of  discovery,  169-181, 1st  Kd.  IJ.  14'2- 
171.  Id.  185, 186,  2d  Ed.  See  also  Phelps  v.  Sjiroule,  1  Myl.  &.  Keen, 
231  ;  Cork  v.  Wilcock,  5  Madd.  R.  328,  on  the  same  point." 


828 


PLEAS. 


[Chap.  IL 


[278]         A  purchaser  with  notice,  of  a  purchaser  without 


94  ;  3  P.  Wms.  244,  note.  Gilb.  For. 
Rom.  58 ;  Treat,  of  Frauds,  c.  18,  p. 
220.  In  the  case  of  Meadows  v. 
Duck,  of  Kingston,  Mich.  1777, 
{S.  C.  reported  Ambl.  756,)  the  Chan- 
cellor" seemed  to  be  of  opinion,  that 
notice  and  fraud  were  to  be  denied  by 
way  of  averment  in  the  plea,  in  cases 
only  where  the  denial  made  part  of 
an  equitable  defence  ;  as  in  a  plea  of 
purchase  for  valuable  consideration, 
the  denial  of  notice  must  be  by  way 
of  averment  in  the  plea,  because  the 
want  of  notice  creates  the  equitable 
bar.  But  in  Devie  and  Chester,  in 
Chan.  March  10th,  1780,  a  decree 
establishing  a  modus  having  '  been 
pleaded  to  a  bill  for  tithes,  in  which 
the  plaintifF  stated  that  the  defen- 
dants set  up  the  decree  as  a  bar  to 
his  claim,  and  to  avoid  the  effect  of 
the  decree  charged  that  it  had  been 
obtained  by  collusion,  and  stated  facts 
tending  to  show  collusion  ;  the  Chan- 
cellor was  of  opinion,  that  the  defen- 
dants not  having  by  averments  in  the 
plea  denied  the  collusion,  although 
they  had  done  so  by  answer  in  sup- 
port of  the  plea,  the  plea  was  bad  in 
form,  and  he  overruled  it  accordingly. 
And  in  Hoare  and  Parker,  in  Ch 
17th  and  19th  of  Jan.  1785,  (reported 
1  Bro.  C.  C.  578  ;  S.  C.  1  Cox,  R. 
244,)  the  plaintiffi  having  brought 
their  bilf  as  trustees,  claiming  quanti- 
ties of  plate  described  in  a  schedule 
annexed  to  the  bill,  of  which  the  use 


had  been  given  by  the  will  of  Admi- 
ral Stewart  to  his  widow  for  her  life, 
and  after  her  death  to  his  son  and 
his  issue  ;  against  the  defendant,  a 
pawnbroker,  with  whom  the  plate, or 
part  of  it,  was  alleged  to  have  been 
pledged  by  the  widow ;  and  the  bill 
having  sought  a  discovery  of  the  par- 
ticular pieces  of  plate  pawned,  in 
order  to  found  an  action  of  trover, 
the  defendant  pleaded  to  so  much  of 
the  bill  as  sought  a  discovery  of  the 
plate  .pawned,  as  after  mentioned  in 
the  plea,  and  of  the  plate  specified  in 
the  schedule  annexed  to  the  bill,  that 
Mrs.  Stewart  had  pledged  divers  arti- 
cles of  plate  at  several  times  stated  in 
the  plea,  for  sums  of  money  specified 
in  the  plea,  which  sums  the  defendant 
averred  were  paid  to  Mrs.  Stewart; 
and  he  also  averred  that  he  had  no 
notice  of  the  will  of  Admiral  Stewart 
till  after  the  death  of  Mrs.  Stewart; 
but  he  did  not  aver  by  his  plea  that 
he  had  no  plate  pawned  with  him  by 
Mrs.  Stewart  besides  the  pieces 
pawned  at  the  particular  times  men- 
tioned in  the  plea,  although  he  did  by 
his  answer  deny  that  he  had  any 
other.  The  chancellor  was  of  opin- 
ion that  th^  plea  was  therefore  defec- 
tive in  point  of  form,  as  it  extended 
to  all  the  plate  mentioned  in  the 
schedule  of  which  a  discovery  was 
sought  by  the  bill.  See  6  Ves.  595, 
597;  and  see  p.  280,  et  seq.  (1) 


(1)  [Smzer  v.  De  Meyer,  2  Paige's  C.  R.  574.  Lord  Chancellor 
LifFord,  (in  Lord  Drogheda  v.  Malone,  Finlay's  Digest,  449)  has  thus 
illustrated  a  plea  of  valuable  consideration  ;  "with  re?pect  to  purcha- 
•'sers  for  valuable  consideration,  the  early  cases  were  crude  and  not 
"  sufficiently  guarded,  but  it  is  now  established,  that  such  a  purchaser, 
"  without  notice,  shall  protect  himself  from  relief  and  discovery  by  this 


S.  II.  p.  II.]  PLEAS.  388 

notice,  may  shelter  himself  under  the  first  purcha- 
ser {t).  But  notice  to  an  agent  is  notice  to  the 
principal  (u) ;  and  where  a  person  having  notice 
purchased  in  the  name  of  another  who  had  no  no- 
tice, and  knew  nothing  of  the  purchase,  but  after- 
wards approved  it,  and  without  notice  paid  the  pur- 

(<)  Brnndlyn  v.  Ord,  1  Atk.  571  ;  329  ;  Jackson  v.  McChesney,  7  Cow- 

Lowther    v.  Carlton,  2    Atk.    1^9  ;  eji-'s  K.  360. 

-S.  C.  2  Atk.  242 ;  Ca.  t.  Thlb.  187 ;  (a)  Brotherton   v.  Halt,  2  Vern. 

2  Eq.  Ca.  Ab.  685 ;  Sweet  v.  South-  574  ;  Le  Neve  v.  Le  Neve,  3   Atk. 

cote,  2  Bro.  C    C.   66  ;  Ambl.  313  ;  646 ;  1  Ves.  62 ;  2  Vcs  62,  370 ;  13 

11  Yes.  478;  13  Ves.  120;  and  see  Ves.    120;    Mounlford    v.    Scott,  3 

Harrison  v.  Forth,  Free,  in  Cha.  51 ;  Madd.  34. 
Varick  v.  Briggs,  6  Paige's  Cli.  Rep. 

"  sort  of  plea ;  and  upon  this  principle,  that  all  men  who  stand  on  equal 
"  ground  shall  have  eqnal  equity,  because  the  court  cannot  do  anything 
"for  one,  without  injuring  the  other.  No  title  can  be  better  Uian  tlie 
"title  of  such  a  purchaser:  particularly  where  the  consideration  is 
"  marriage.  If  he  has  a  legal  title,  the  court  cannot  interpose.  Several 
".circumstances  are  now  required  to  substantiate  this  si  rt  ot  plea, 
"  which,  at  first,  were  not  attended  to.  I.  That  the  party  with  whom 
"  such  purchaser  has  dealt,  should  be  seised,  or  pretended  to  be  seised,  in 
"  fee  and  this  must  be  averred.  1  Vern.  246.  If.  That  he  is  the  visible 
•*  and  reputed  owner.  HI.  That  the  purchaser  shall  purchase  for  valu- 
"  able  consideration.  There  are  two  sorts  of  valuable  considera'ion  :  1. 
"Money;  2.  Marriage.  With  respect  to  monpy — it  ougiit  to  be  paid 
"at the  time.  With  respect  to  marriage — it  is  certainly  a  valuable 
"  consideration,  and  the  moment  the  marriage  is  celebrate  I,  the  con- 
"  sideration  is  paid.  IV.  That  there  shall  be  no  notice  e.xp-ess  or  im- 
"  plied  of  any  fraud  committed  by  the  person  with  whom  the  purcliaser 
"deals..  He  must  show  that  he  has  been  dilgent,  and  tlien  he  will 
"appear  innocent  and  may  protect  himself.  The  great  end  of  equity 
"and  all  institutions  of  justice  is  to  make  property  eafo  and  to  render 
''  it  secure.  If  a  purchaser  has  notice,  he  throws  away  his  money 
•'  wilfully.  1  Atk.  He  acts  contrary  to  good  conscience,  for  he  ought 
"  not  to  interfere  with  any  man's  right :  these  circumstances  should  all 
"concur.  As  to  pleas  in  general:  1.  A  plea  must  be  such  as  not  to 
"  cover  too  much,  and  this  sort  of  plea  particularly  should  niit  cover 
•'more  than  the  purchase  for  valuable  consideration  cover*.  With 
"  respect  to  all  such  overplus  it  is  bad :  it  cannot  cover  any  fraud  in 
"the  purchaser  himself,  &c.,  &r."] 


828  PLEAS.  [Chap.  II. 

chase-money,  and  procured  a  conveyance,  the 
person  first  contracting  was  considered  from  the 
beginning  as  the  agent  of  the  actual  purchaser,  who 
was  therefore  held  affected  with  notice  (x).  A 
settlemeht  in  consideration  of  marriage  is  equiva- 
lent to  a  purchase  for  a. valuable  consideration  («/), 
and  may  be  pleaded  in  the  same  manner  (z).  If  a 
[279]  settlement- is  made  after  marriage  in  pursuance  of 
324  an  agreement  before  marriage,  the  agreement  as 

well  as. the  settlement  must  be  shown  (z).  A  wi- 
dow, defendant  to  a  suit  brought  by  any  person 
claiftiing  under  her  husband,  to  discover  her  title  to 
lands  of  which  she  is  in  possession  as  ber  jointure, 
may  plead  her 'settlement  in  bar  Jo  any  discovery, 
unless  the  plaintifT  offers^,  and  is  able,  to  confirm 
her  jointure.  But  a  plea  of  this  nature*  must  set 
forth  the  settlement,  and:  the  lands  comprised  in  it, 
.with' sufficient  certainty  (a).  A  plea  of  purchase 
for  a  valuable  consideration  protects  a  defendant 
from  giving  any  answer. to  a  title  set  up  by  the  plain- 
tiflf,  but  a  plea  of  bare  title  only,  vv'^ithout.  setting 
forth,  any  consideration,  is  not  sufficient  for  that 
purpose  (h).  Upon  a  plea  of  purchase  for  a  valu- 
able consideration  to  a  discovery  of  deeds  and  wri- 
tings, the  purchase-deed  must  be  excepted,  for  it 
is  pleaded  (c). 

(x)  Jennings  V.Moore,  2  Vem.  609;  (z)  Lord  Keeper  v.  Wyld,  1  Vern. 

S.  C.  on  appeal  under  title  Blenkarne  139. 

V.  Jennens,  2  Bro.  C.  C  278,  Toml.  (a)  Petre  v.  Pelre,  3  Atk.  511 ;  3 

Ed.;  Cootev.  Mammon,  5  Bto.F.C.  Atk.  571;    2    Ves-    450;    Leech  v. 

355,  Toml.  Ed.  ,  Trollop,  2  Ves.  662.     As  to  the  case 

(y)  1   Atk.  190;  6  Ves.   659;  18  of  a  dowress  plaintiff,  see  above,  p 

Ves.  92 ;  6  Dow  P.  C.  209  ;  2  Sim.  &  319,  note  (d).     1  Ves.  Jim.  76. 

Stu.  475.  (6)  2  Atk.  241. 

(z)  Harding  v.  Hardrett,  Finch,  (c)  S  Ves.  107. 
R.  9. 


S.  II.  p.  II.]  PLEAS.  324 

A  plea  of  purchase  for  a  valuable  consideration 
without  notice  of  the  plaintiff's  title  to  a  bill  to 
perpetuate  the  testimony  of  witnesses,  has  been  al- 
lowed, though  there  are  few  cases  in  which  the 
court  will  not  give  that  assistance  to  the  furtherance 
of  justice.  Thus,  to  a  bill  to  perpetuate  the  testi- 
mony of  witnesses  to  a  will  the  defendant  pleaded  [280] 
purchase  for  a  valuable  consideration,  without  no- 
tice of  the  will,  and  the  plea  was  allowed  (r)  (1). 
But  in  this  case,  as  reported,  there  appears  to  have 
been  nothing  to  impede  the  plaintiff's  proceeding  325 

at  law  to  assert  his  title  undef  the  will,  ajjainst  the 
defendant's  possession,  and  there  was  apparently 
therefore  no  equity  to  support  the  bill  (^). 

XI.  Though  a  plaintiff  may  be  fully  entitled  to  ll^l^^.^*^"- 
the  relief  he  prays,  and  the  defendant  may  have 
no  claim  to  the  protection  of  the  court  which  ought 
to  prevent  its  interference,  yet  the  defendant  may 
object  to  the  bill  if  it  is  deficient  to  answer  the 
purposes  of  complete  justice.  This  is  usually 
for  want  of  proper  parties  ;  and  if  the  defect  is 
not  apparent  on  the  face  of  the  bill  (e),  the  defen- 
dant may  plead  the  matter  necessary  to  show  it 

(c)  Bechiiial  v.  Arnold,  1   Vern.     P.  C.  362,  Toral.  Ed. ;  2  Ves.  Jun. 
354.  458. 

{(l)  See  also  Ross  v.  Close,  5  Bro.        (e)  16  Vee.  325.  "^ 


(1)  The  question  sometimes  arises  as  to  who  is  to  be  treated  as  a 
bond  fide  purchaser  in  the  sense  of  the  rule  ;  and  it  has  been  held  that 
a  judgment  creditor  by  elegit  is  not  entitled  to  be  deemed  such  ;  but  he 
takes  only  such  rights  in  the  premises  as  the  judgment  debtor  right- 
fully possessed.  Thus,  for  e.\  imple,  a  judgment  creditor  cannot  hold 
an  estate  subject  to  an  equitable  mortgage,  by  an  elegit  executed  on 
the  estate  of  the  debtor  mortgagor,  except  subject  to  such  equitable 
mortgage,  although  he  had  no  notice  of  the  mortgage  at  the  time  of 
the  elegit.     3  Hare's  Rep.  416  ;  2  Story's  Eq.  Juris.  {.  1603. 

27 


326  PLEAS.  [Chap.  11. 

(/)  (1).  A  plea  of  want  of  parties  goes  both  to 
discovery  and  relief  where  rehef  is  prayed  {g), 
though  the  want  of  parties  is  no  objection  to  a  bill 

(/)  Hanne  v.  Stevens,  1  Vern.  (g)  2  Alk.  ol,\n  Pluiiket  v.  Pen- 
110;  Ashurst  v.  Eyre,  2  Atk.  51  ;  son,  wherein  this  plea  is  termed  a 
-S.  C.  3  Atk.  341.  plea  in  bar  ;  but  see  6  Ves.  594 ;    16 

Ves.  325. 


(1)  [Mitchell  v.  Lenox,  2  I'aige'd  C.  11.  289;  M'Kinley  v.  Combe, 
1  Mon.  107;  We^t  v.  Saunders,  \  Marsh.  110;  Seethe  form  of  a 
plea  for  want  of  parties,  Willis,  571,  and  see  note  there  ;  Edwards  on 
Parties,  292. J 

A  plea  for  want  of  parties  must  be  to  the  entire  bill.  Parke  v. 
Black,  1  Hogan,  70  ;  and  see  tha  cases,  which  appeared  to  make  the 
practice  doubtful,  there  reviewed.] 

Where  a  plea  is  put  in  fur  want  of  parties,  on  the  ground  that  cer- 
tain persons  not  named  parties  claimed  adversely,  such  persons  alle- 
ging certain  facts  as  the  ground  of  their  claim  ;  and  the  p'ea  does  not 
state  that  those  facts  are  true,  but,  by  admitting  the  statements  in  the 
bill,  admits  indeed  that  those  facts  are  falsely  alleged,  it  cannot  be  sus- 
tained.    Birch  V.  GougJi,  3  Jur.  769,  V.  C.  E. 

Where  a  1  ill  is  tiled  in  respect  of  a  legacy  given' to  a  class  of  chil- 
dren, to  vest  at  twenty-one  or  marriage,  a  plea  that  the  representative 
of  a  deceased  child  is  a  necessary  party,  will  be  overruled,  if  it  does  not 
show  that  such  child  had  attained  a  vested  interest.  Oierlon  v. 
Banister,  4  Beav.  205. 

A  plea  that  an  equitable  mortgagee  by  deposit  of  title  deeds  is  not 
a  party,  will  be  overruled,  if  it  does  not  state  with  whom  they  were 
deposited,  but  only  leads  to  an  inference  that  they  were  deposited 
with  a  certain  person  ;  for  if  this  person  were  made  a  party,  the  de- 
fendant might  again  object  that  some  other  person  in  whose  hands 
the  deeds  then  were,  is  a  necessary  party.  Henley  v.  Stone,  4  Beav. 
389. 

A  second  plea  for  want  of  parties  is  allowable,  where  by  an  amend- 
ment of  the  bill  subsequent  to  the  first  plea,  the  plaintiff  brings  for- 
ward additional  matter  which  shows  that  the  persons  mentioned  in  the 
second  plea  are  necessary  parties,  in  addition  to  those  mentioned  in 
the  first  plea.     Henley  v.  Stone,  4  Beav.  389. 

Where  a  bill  seeks  a  discovery  whether  there  are  any  incum- 
brancers, and  who  they  are,  the  very  nature  of  the  bill  precludes 
the  defendant  from  pleading  to  the  bill,  on  account  of  those  incum- 
rancers  not  being  made  parties.  Rawlins  v.  Daltvn,  3  Y.  &,  C.  Eq^. 
Ex.  447. 


S.  II.  p.  II.]  PLEAS.  326 

for  a  discovery  merely  {h).     Where  a  sufficient 
reason  to  excuse  the  defect  is  suggested  by  the  bill, 
as  where  a  personal  representative  is  a  necessary 
party,  and  the  bill  states  that  the  representation  is 
in  contest  in  the  ecclesiastical  court  (i),  or  where     [2811 
the  party  is  resident  out  of  the  jurisdiction  of  the 
court  (k),  and  the  bill  charges  that  fact,  or  where  a 
bill  seeks  a  discovery  of  the  necessary  parties  (/), 
an  objection  for  want  of  parties  will  not  be  allowed, 
unless,  perhaps,  the  defendant  should  controvert 
the  excuse  made  by  the  bill  by  pleading  matter  to 
show  it  false  (1).     Thus,  in  the  first  instance,  if 
before  the  filing  of  the  bill  the  contest  in  the  ec- 
clesiastical court  was  determined,  and  administra- 
tion granted,  and  the  defendant  showed  this  by  327 
plea,  perhaps  the    objection    for    want   of  parties 
would  be  in  strictness  goo3.     Upon  arguing  a  plea 
of  this  kind,  the  court,  instead  of  allowing  it,  has 
given  the  plaintiff  leave  to  amend   the  bill  upon 
payment  of  costs  {tn)  (3)  ;  a  liberty  which  he  may 

(A)  Sangona  v.  E.  I.  Comp.  2  Eq.  (m)  Stafford  v.   City  of  London,     - 

Ca.  Ab.  170.  1  P.  Wm8.  428  ;  and  where  the  plea 

(i)  See   2   Atk.  51,  in   Plunket  v.  was  defective  in  point  of  form,  in  not 

Penson.  stating  that   additional    parties  were 

(k)  Cowslad.    v.    Cely,    Prec.     in  necessary,  and  naming  them,  leave 

Cha.  83  ;  and  see  Haddock  v.  Thoni-  was  given  to  amend  the  plea.     Mer- 

/t'/ison,  2  Sim.  &  Stu.  219,  and  above,  rewether    v.   Mellish,    13  Vee.  435. 

p.  191,  note.  See  11  Ves.  369  ;  16  Ves.  323  (2). 
(I)  See  Bowyerv.  Covert,  1  Vern.95. 

(1)  [Milligan  v.  Milledge,  3  Cranch,220.] 

(2j  [It  seems,  that  leave  will  not  be  given  to  amend  a  plea,  unless 
the  court  is  eatiefied  the  defect,  which  ti;e  amendment  ie  intended  to 
remedy,  arose  from  an  accidental  slip.  And  even  in  such  a  case  an 
aflSdavit  will  be  required,  provided  the  opposite  party  require  it.  Jack- 
son V.  Rowe,  4  Ruse.  614.] 

(3)  [Cook  V.  Mancius,^].  C.  R.  427.] 


Tery. 


828 


327  PLEAS.  [Chap.  II. 

also  obtain  after  allowance  of  a  plea,  according  to 
the  common  course  of  the  court ;  for  the  suit  is 
not  determined  by  allowance  of  a  plea  as  it  is  by 
allowance  of  a  demurrer  to  the  whole  of  a  bill  (ii). 
Pleas  to  disco  Haviug  thus  considered  all  the  objections  to  a 
bill  which  have  occurred,  as  extending  to  relief,  and 
w^hich  likewise  extend  to  discovery  (1)  wherever  it 
is  merely  sought  for  the  purpose  of  obtaining  re- 
[282]  lief,  and  can  have  no  other  end,  it  remains  to  treat 
of  such  objections  as  are  grounds  of  plea  to  dis- 
covery only.  These  are  nearly  the  same  as  those 
v^^hich  have  been  already  mentioned  as  causes  of 
demurrer  to  discovery.  They  may  be,  I.  That  the 
plaintiff's  case  is  not  such  as  entitles  a  court  of 
equity  to  assume  a  jurisdiction  to  compel  a  disco- 
very in  his  favor  ;  II.  That  the  plaintiff  has  no 
interest  in  the  subject,  of  no  interest  which  entitles 
him  to  call  on  the  defendant  for  a  discovery  ;  III. 
That  the  defendant  has  no  interest  in  the  subject 
to  entitle  the  plaintiff  to  institute  a  suit  against 
him  even  for  the  purpose  of  discovery  only ;  IV. 
That  the  situation  of  the  defendant  renders  it  im- 
proper for  a  court  of  equity  to  compel  a  disco- 
very (2). 

(n)  See  below,  original  page  [304]. 

Plea  to  disco-  (1)  Where  a  bill  alleges  the  plaintiff's  title  to  an  estate,  and  prays 
reUef.  ^  *^  *"  account  of  the  rents  and  a  discovery  of  documents,  and  the 
defendant  pleads,  in  bar  to  the  relief,  that  he  is  the  party  entitled, 
and  pleads  to  so  much  of  the  discovery  as  r&qnires  an  account  of  the 
rents  and  a  discovery  of  documents  relating  to  the  rents,  and  in  his 
answer  sets  forth  a  list  of  all  documents  except  such  as  relate  exclu- 
sively to  the  rents,  his  plea  will  be  overruled :  for  such  documents 
may  contain  information  which  may  go  to  prove  the  plaintiff's  title. 
Rigby  V.  Rigty,  10  Jur.  126,  V.  C.  E. 

(1)  The  statute  of  limitations  may  be  pleaded  to  a  bill  of  dis- 


S.  II.  r.  II.]  PLEAS.  329 

I.  If  the  plaintiff's  case  is  not  such  as  entitles  oVKdictkl^* 
a  court  of  equity  to  assume  a  jurisdiction  to  com- 
pel a  discovery  in  his  favour,  though  he  falsely 
states  a  difToreut  case  by  his  bill,  so  that  it  is  not 
liable  to  a  demurrer,  the  defendant  may  by  plea 
state  the  matter  necessary  to  show  the  truth  to  the 
court  (n)  (1). 

(n)  But  if  a  plaintiff  who  is  bauk-  payment  of  tiie   balance  to  him,  it 

rupt,  in  a  bill  filed  by  him  to  obtain  would  overrule  a  plea  of  that  fact  so 

discovery  in  aid  of  his  defence  to  an  far  as  to  give  him  the  discovery,  and 

action,  and  Icr  an  account,  and  au  even    to    have    the   accounts  taken, 

injunction  in  the  mean  time,  should  Lowndes  v.  Taylor,  1  Madd.  R.  423  ; 

avoid    stating    his   bankruptcy,    al-  S.  C.  2  Rose,  365.     See  above,  p.  81, 

though  this    court,  it  seems,  would  note, 
not  afford  him  relief  by  decreeing  the 

covery  in    aid  of   an    action    of   assumpsit,  provided   it   has    been  Plea  of  etamte 
pleaded  to  the  action.     Macgregor  v.   East  India  Company,  2  Sim.   a  bill  of  diacoT- 

'aM  ery  in  aid  of  ao 

action  of  aa- 
And  such  a  plea  need  'not  deny  the   usual  allegation   as  to  books  sumpsit, 

and   papers  in  the  possession  or  power  of  the  defendant,  from  which 

the  truth  of  the  matters  in  the  bill  would  appear,  unless  there  is  an 

allegation  or  charge  that  there  has  been  a  promise  or  acknowledgment 

evidenced  by  a  writing  within  six  years.     lb. 

The  statute  of  limitations  may  also  be  pleaded  to  a  bill  of  discovery  or  ejectment, 
in  aid  of  an  action  of  ejectment.     Scott  v.  Bradwood,  2  Coll.  447. 

Where  a  bill  of  discovery  is  filed  in  aid  of  a  plea  to  an  action  for  PJeato  "  bill  of 

■'  •^  discovery  in  aid 

libel,  pending  a  demurrer  at  law  to  that  plea,  and  the  defendant  in  of  a  plea  to  an 
,  11-,,  •  1  I  r         1     1  action  for  libel, 

equity  puts  in  a  plea  to  the  bill,  stating  the  pendency  ol  such  demurrer 

at  law,  and  averring  the  invalidity  of  such  plea  at  law  ;  the  plea  to  the 

bill  will  be  allowed,  notwithstanding  the   possibility  that  the  court  of 

law  may  allow  the  plea  at  law  to  be  amended  ;  for,  in  such  case,  there 

is  no  actual  proceeding  at  law  in  which  the  discovery,  if  obtained,  can 

be  used.     Stewart  v.  Lord  Nugent,  1  Keen,  201. 

A  plea  that  an  action  for  libel  has  been  discontinued  and  is  at  an  piea  of  the  di«- 

end,  is  no  defence  to  a  bill  for  a  discovery  and  commission  in  aid  of  a  a°°ac"i^^^f,  la 

plea  of  iustification  to  the  action,  inasmuch  as  the  defendant  in  equity  ofthedefenceto 

r  •>  *       •'     which   0  bill   of 

might  commence  another  action.     But  upon  the  defendant  afterwards  discovery i» filed 
undertaking  not  tu  bring  any  other  action,  and  to  pay  the  costs  of  the 
suit,  all   further   proceedings   will  be   stayed.      Wilmot  v.   Muccabe,  4 
Sim.  1:63. 

(1)  [For  the  form  of  a  plea  to  the  jurisdiction,  where  a  discovery 
is  sought  in  a.d  of  another  court  of  competent  jurisdiction,  see  Willis, 
574.] 


329  PLEAS.  [Chap.  II. 

[283]  II.  If  a  plaintiff  by  his  bill  states  himself  to  have 
of  ^iereeu^tho  ati  intcrcst  which  entitles  him  to  call  on  the  defend- 
right  to  su/.  °  ant  for  a  discovery,  though  in  truth  he  has  no  such 
interest,  the  defendant  may  by  plea  protect  himself 
from  making  the  discovery,  which  may  involve 
him  in  difficulty  and  expense,  and  perhaps  may  be 
prejudicial  to  him  in  other  cases  (1).  Thus,  if  a 
plaintiff  states  himself  to  be  heir  or  administrator 
of  a  person  dead  intestate,  and  in  that  character 
seeks  a  discovery  from  a  person  in  possession  of 
property  which  did  belong  to  the  deceased,  of  his 
title  thereto,  or  of  the  particulars  of  which  it  con- 
sists, the  defendant  may  plead  that  another  person 
is  heir  or  personal  representative,  or  that  the  per- 

330  son  alleged  to  be  dead  is  living  (o)  (2). 
III.  It  has  been  already  observed,  that  if  a  claim 

of  interest  is  alleged  by  a  bill  against  a  person  who 

(o)  Ordv.Willianison,TT'm.  mS;     see    Gait   v.    Osbaldeston,    1    Rusa. 
Old  V.  Huddlestone,  Dick.  510.  And     158 ;  S.  C.  5  Madd.  428. 


(ll  Mendizahel  v.  Machado,  I  Sim.  68.  [But,  to  a  bill  by  several 
tenants  in  common-  of  an  estate  within  the  Island  of  Jamaica  against 
their  co-tenant,  for  an  account  of  the  profits,  &c. — it  was  held  as  not 
sufficient  for  the  defendant  to  plead  that  the  title  to  the  estate  might 
be  brought  in  question  and  suggesting  that  he  had  an  exclusive  title  to 
the  whole  and  ought  not,  therefore,  to  be  sued  in  chancery.  He  ought 
to  have  set  forth  his  title  affirmatively,  that  the  court  might  have  de- 
termined whether  the  suit  ought  to  have  been  stayed  until  the  title 
was  established.  Lhingslon  v.  Liiingston,  3  J.  C.  R.  51.] 
Bill  making  offi-       The  rule  that  officers  of  a  corporation  may  be  made  co-defendants 

cers  of  a  corpo-       .,       ,  ,.  i.  l-h     i-   j-  n  i-i, 

ration  co-defen-  With  the  corporation,  applies  to  a  bi.l  oi  discovery  as  well  as  to  a  bill 
^^*^'  for  relief.     GlascoU  v.    The   Governor  and    Company  of  the    Cop/er 

Miners  of  England,  11  Sim.  305. 

(2)  [If  a  party  having  an  interest,  join?,  as  a  co-plaintiff,  a  party 
having  no  interest,  a  plea  will  be  a  good  defence  to  the  suit,  if  the  fact 
does  not  appear  on  the  face  of  the  bill  (and  if  it  does  appear,  a  demur- 
rer will  hold.)     Makepeace  v.  Haythorne,  4  Rnss.  244.] 


III.  Plea  of  want 
of  interest  in  the 
defendant. 


S.  11.  p.  II.]  PLEAS.  330 

has.no  interest  in  the  subject,  he  cannot  by  demur- 
rer "protect  himself  from  a  discovery,  and  must  re- 
sort either  to  a  plea  or  disclaimer  ( /?)  (1)  ;  by  either 
of  which  means  it  should  seem  he  may  protect 
himself  from  making  by  answer  that  discovery 
which  he  may  properly  be  required  to  make  if  call- 
ed upon  as  a  witness  (//).  In  some  cases  however 
the  court  has  allowed  a  defendant  to  protect  him- 
self by  answer,  denying  the  charge  of  interest, 
from  answering  to  matters  to  which  he  may  be  af- 
terwards called  upon  to  answer  in  the  character  of 
a  witness  ;  and  perhaps,  in  justice  to  those  against  [284] 
whom  he  may  afterwards  be  called  upon  to  give 
evidence  as  a  witness,  he  ought  not  to  be  previous- 
ly examined  to  the  same  matters  upon  a  bill,  under 
the  pretence  of  an  interest  which  he  has  not. 

IV.  The  situation  of  a  defendant  may  render  it  dLolTr^woSS 
improper  for  a  court  of  equity  to  compel  a  disco-   ^""p"^"?^'- 
very,  1,  because  the  discovery  may  subject  him  to 
pains  and  penalties  ;  2,  because  it  will  subject  him 
to  a  forfeiture,  or  something  in  the  nature  of  a  fpr-  ^^l 

feiture  ;  3,  because  it  would  betray  the  confidence 
reposed  in  him  as  a  counsel,  attorney,  or  arbitra- 

(p)  Page    223.     And  see    1   Ves.     settled  that  a  bankrupt  could  by  plea 
426.  protect  himself  from  discovery.     See 

(q)  But  it  does  not  appear  to  be     1  Ves.  &  B.  550  (2). 

(1)  [By  the   practice  of  the   State  of  New-York,  a  party  who  die. 
claims  in  a  mortgaoe  case  will  have  to  pay  costs.     Rule  133.] 

(2)  See  supra,  pp.   187,  188.     But  see   Cfriffm  v.   Archer,  li  Anst. 
478. 

To  a  bill  fiT  the  delivery  up  of  bills  of  exchant'e  wliich  the  plain-      Pi<^"  of  bwik- 
tiff  had  been  fraudulently  induced  by  the  drawer  to  accept  without  a  dnat.  in  suit  for 
consideration,  the  drawer  cannot  plead  that  he  has  bxome  bankrupt  biiu 'o7  ex^ 
since  the  filin<r  of  the  bill.     Mackworth  v.  Marshall,  3  Sim.  368  ;   [and  '=''»°«« 
see  Willis  on  Eq.  Plead.  266,  and  note  (a)  there.] 


331  PLEAS.  [Chap.  IL 

tor  ;  4,  because  he  is  a  purchaser  for  a  valuable 

consideration  without  notice  of  the  plaintiff 's  title. 

disc^overj'wouw      I  •  It  has  bccu  already  observed,  that  no  person 

fenS  to^pun-  is  bound  to  answer  so  as  to  subject  himself  to  pun- 
ishment, or  any  .   .  .  ,  .  , 

thing  in  the  na-  ishmeut,    lu    whatevcr    manner   that   punishment 

ture  of  punish-         _  ^  \ 

™*"^-  arises,  or  whatever  is  the  nature  of  the  punish- 

ment (/•).  If  therefore  a  bill  requires  an  answer 
which  may  subject  the  defendant  to  any  pains  and 
penalties  (1),  or  tends  to  accuse  him  of  any  crime, 
and  this  is  not  so  apparent  upon  the  face  of  the  bill 
that  the  defendant  can  demur,  he  may  by  plea  set 
forth  by  what  means  he  may  be  liable  to  punish- 
ment, and  insist  he  is  not  bound  to  answer  the  bill, 
or  so  much  thereof  as  the  plea  will  cover  (.s)  (2). 
Thus  to  a  bill  brought  for  discovery  of  a  marriage, 

(r)  Page   229.      See  2  Ves.  245  ;  109  ;  Claridge  v.  Hoare,  14  Ves.  59; 

2  Swanst.  214,  216;  Bird  v.  Hard-  Maccullum  \.    Turton,2  Younge  & 

wicke,  1  Vern.  109  ;  11  Ves.  525.  Jervis,  183, 186  ;  Hare  ou  Discovery, 

(s)  Bird    V.  Hardwicke,    1  Vern.  131-156. 

Pleaof  expo-       C-^)  If  the  interval  between  the  filing  and  the  arguing  of  a  plea  that 
mire  to  a  penal-  the  discovery  sought  vv^ould  expose  the  defendant  to  a  penalty,  the  period 
elapses  within  which  the  penalty  can  be  sued  for,  the  plea  will  be  over- 
ruled.    The  Corporation  of  Trinity  House  Strand  v.  Burge,  7  Law  J. 
(O.  S.)  44,  V.  C. 

Where  a  tenant  undertakes  to  pay  an  additional  rent,  in  case  he 
shall  do  or  not  do  certain  acts,  though  such  additional  rent  be  in  some 
passages  of  the  lease  designated  a  penalty,  it  is  not  considered  as  a 
penalty  so  as  to  protect  the  tenant  from  answering  to  a  bill  of  discovery 
as  to  such  acts.     Jones  v.  Green,  3  Y.  &  J.  290. 

(2)  [But  if,  between  the  filing  and  the  hearing  of  the  plea,  the  time 
for  suinii  for  the  penalties  expires,  the  plea  will  be  overruled.  Corpo- 
ration of  Trinity  Church,  v.  Buge,  2  Sim.  411.  See  the  furra  of  a 
plea  that  the  discovery  will  subject  the  defendant  to  pains  and  penal- 
ties, Willis,  677;  also  the  form  of  the  plea  used  in  Claridge  v.  Hoare, 
supra.]  Beames'  Pleas  in  Equity,  Appendix  333-6,  being  tlie  actual 
plea  in  Hutchins  v.  Laridar,  Cooper's  Eq.  PI,  34,  allowed  by  Lord 
Eldon. 


S.  II.  p.  II.]  PLEAS.  331 

where  the  fact,  if  true,  would  have  subjected  the     [285] 
party  to  punishment  in  the  ecclesiastical  court  for  ^32 

incest,  the  defendant  pleaded  matter  to  show  that 
the  marriage,  if  real,  was  incestuous,  and  would 
subject  the  parties  to  pains  and  penalties  (f).  And 
where  a  bill  was  brought  against  a  woman  claim- 
ing as  widow  of  a  person  dead,  alleging  that  before 
her  marriage  with  the  deceased  she  was  married 
to  another  person,  who  was  living  at  the  time  of 
her  marriage  with  the  deceased,  the  defendant 
pleaded  that  marriage  to  the  discovery  of  the  sup- 
posed first  marriage,  and  insisted  that  she  was  not 
compellable  to  answer  to  the  fact  of  the  first  mar- 
riage, as  it  would  tend  to  show  her  guilty  of 
bigamy  (w).  So  to  a  bill  for  a  discovery  whether 
the  defendant  had  become  a  purchaser  of  an  estate 
of  which  the  supposed  seller  was  not  in  possession, 
the  defendant  pleaded  the  statute  against  selling 
or  contracting  for  any  pretended  rights  or  titles  (.t). 
And  to  a  bill  brought  by  insurers  for  a  discovery 
of  what  goods  had  been  shipped  on  board  a  vessel, 
the  defendant  pleaded  the  statutes  which  made  it 
penal  to  export  wool.  He  was,  however,  directed 
to  answer  so  far  as  to  discover  what  goods  were 
on  board  the  vessel  besides  wool  (//).  But  where 
the  discovery  sought  was  not  of  a  fact  which  could 
subject  the  defendant  to  any  penalty,  though  con- 
nected with  another  fact  which  might,  as,  where 
the  question  was  whether  the  defendant  had  a  le- 
gitimate son,  the  defendant  was  compelled  to  answer.     [286] 

(/)    Brownsword   v.    Edwards,  2         (x)  Sharp  v.  Carter,  3  V    Wms. 
VeB.  243  ;  14  Ves.  65.  375. 

(u)  5  Bro.  P.  C.  102,  Toml.  Ed.  (y)  Duncalf  v.  Blake,  1  Alk.  52. 


333  PLEAS.  [Chap.  II. 

For  the  discovery  of  that  fact  would  not  subject  him 
to  a  penalty,  though  the  discovery  of  his  marriage 
with  the  mother  of  the  son  might,  and  therefore  he 
was  not  compelled  to  discover  the  marriage  (z). 
liBclfvery  woiJid  2'  ^t  has  beeu  also  {a)  observed,  that  no  person  is 
fendant to^a for-  bouud  to  auswer  so  as  to  subject  himself  to  any 
forfeiture,  or  to  any  thing  iq  the  nature  of  a  forfeit- 
ure (^).  If  this  is  not  apparent  on  the  bill,  the  de- 
fence must  be  made  by  way  of  plea.  Thus  where 
a  bill  was  brought  to  discover  whether  the  defend- 
ant had  assigned  a  lease,  he  pleaded  to  the  disco- 
very a  proviso  in  the  lease,  making  it  void  in  case 
of  assignment  (c).  And  to  a  bill  seeking  a  dis- 
covery whether  a  person  under  whom  the  defend- 
ant claimed  was  a  papist,  the  defendant  pleaded  his 
title,  and  the  statute  of  11  &  12  Will.  III.  disa- 
bling papists  (d)  (1).  But  such  a  plea  will  only  bar 
the  discovery  of  the  fact  which  would  occasion  a 
forfeiture.  Therefore,  where  a  tenant  for  life  plead- 
ed to  a  bill  for  discovery  whether  he  was  tenant 
for  life  or  not,  that  he  had  made  a  lease  for  the  life 
of  another,  which,  if  he  was  tenant  for  his  own  life 
only,  might  occasion  a  forfeiture,  the  plea  was 
overruled  (c).  So  upon  a  bill  charging  thedefend- 
^34  ant  to  be  .tenant  for  life,  and  that  he  had  commit- 

[287]     ted  waste,  it  was  determined  that  he  might  plead 

(s)  Finch  V.  Finch,  2  Ves.  491.  3  Atk.  457 ;  Jones  v.  Meredith,  Cora. 

(a)  Page  233.                         •  R.  661  ;  S.  C.  Bunb.  346  ;  Harrison 

{b)   1  Atk.  527.      And  see  Park-  v.  Southcote,  528  •,S.C.2  Ves.  389. 

hurst  V.  Lowten,!  Meriv.  391.  (e)  Weaver  v.  Earl   of  Meath,  2 

(c)  Fane  v.  Atlee,  1  Eq.  Ca.  Ab.  77.  Ves.  108. 

(d)  Smith  V.    Read,  1  Atk.  536 ; 


(I)  Thexlisabilities  of  papists  from  holding  property  are  removed  by 
the  Stat  10  Geo.  IV.  c.  7,  s.  23. 


S.  II.  p.  II.]  PLEAS.  *  334 

to  the  discovery  of  the  act  whicli  would  occasion 
the  forfeiture,  the  waste,  but  that  he  could  not  plead 
to  the  discovery  whether  he  was  tenant  for  life  or 
not  (/).  Upon  an  information  by  the  attorney- 
general  on  behalf  of  the  crown,  to  discover  whether 
the  defendant  was  an  alien,  and  whether  her  child 
was  an  alien,  and  where  born,  it  was  held  the  de- 
fendant was  bound  to  discover  whether  she  was 
herself  an  alien,  the  legal  disabihty  of  an  alien  not 
being  a  penalty  or  forfeiture ;  and  that  she  was 
also  bound  to  discover  whether  her  child  was  an 
alien,  and  where  born,  as  she  had  a  chattel  inte- 
rest in  thepropertyin  question  in  trust,  eventually, 
for  the  crown,  if  her  child  was  an  alien  (g).  In 
all  cases  of  forfeiture,  if  the  plaintiff  is  entitled 
alone  to  the  benefit  of  the  forfeiture  (//),  and  waives 
it  by  his  bill,  the  defendant  will  be  compelled  to 
make  the  discovery  required.  And  though  the 
plaintiff  is  not  entitled  to  the  benefit  of  the  forfeit- 
ure, yet  if  the  defendant  has  by  his  own  agreement 
bound  himself  not  to  insist  on  being  protected  from 
making  the  discovery,  the  court  will  compel  him 
to  make  it  (i).  In  some  cases  the  legislature  has 
expressly  provided  that  the  parties  to  transactions 
made  illegal  by  statute  shall  be  compellable  to  an- 
swer bills  in  equity  for  discovery  of  such  transac-  [288] 
tions  ;  and  in  such  cases  a  defendant  cannot  pro-  335 

tect  himself  from  making  the  discovery  thus  re- 
quired by  pleading  the  statute  which  may  subject 

(/)  2  Ves.  109.  stead,  Mosely,  75  ;  S.  C.  I   Eq.  Ca- 

(g)  Alt.  Gen.  v.  Duplessis,  Parker,  Ab.  77. 
144;  5".   C.  1  Bro.  P.  C.  415;  Dau-         («)    Mosoly,  77,  and  llie  cases Ihero 

bigny  V.  Davallon,  Auatr.  462.  cited;  African  Comp.  v.   Parish,  2 

(A)  ISouth  Sea   Comp.   v.  Bump-  Vern.  244. 


335  PLEAS.  [Chap.  II. 

him  to  penalties  in  consequence  of  the  discovery 

defend'am''8'  ^^^      3.  If  d  bill  sccks  a  discovery  of  a  fact  from  one 
derived afcJ^n*  whoso  knowledffc  of  tho  fact  was  derived  from  the 

8cl,  attorney,  or 

arbitrator.  confidcnce  rcposod  in  him  as  counsel,  attorney,  or 
arbitrator,  he  may  plead  in  bar  of  the  discovery  that 
his  knowledge  of  the  fact  was  so  obtained  (Z)  (1). 

4.  Plea  of  pur-      4.  If  a  defendant  is  a  purchaser  for  a  valuable 

chase  for  a  valu-  * 

tion/°°^''^^'^*'  consideration  without  notice  of  the  plaintiff's  title, 
a  court  of  equity  will  not  in  general  compel  him  to 
make  any  discovery  which  may  affect  his  own 
title  (m)  (2).     Thus  if  a  bill  is  filed  for  discovery 

(i)  Bancroft  v.  Wentworth,  3  Bro.  189  ;  Wright  v.  Mayer,  6  Ves.  280  ; 

C.  C.   11.     See,    however,   Bullock  Richards  v.  Jackson,  18  Yes.   472; 

V.  Richardson,   1 1    Ves.  Jun.    373 ;  1  Sch.  &  Lefr.  226  ;  Lowten  v.  Park- 

Billing  V.  Flight,  1  Madd.  R.  230.  hurst,  2   Swanst.  194  ;  aud  Harvey 

il)  Bulstrode  v.   Lechmore,  1  Ca.  v.  Clayton,  and  other  cases  reported. 

in  Cha.  277  ;  S.  C.  2  Freem.  5  ;  and  2  Swanst.  221,  note, 
see  Legard  v.  Foot,  Finch  R.  82 ;         (m)   2   Ves.  Jun.   458  ;    and   see 

Sandford  v.  Remington,  2  Ves.  Jun.  above,  319,  et  seq.  ;  3  Atk.  302. 

(1)  As  to  this  subject,  see  the  present  editor's  note  to  original  page 
[307],  infra. 

Mr.  Greenleaf,  in  his  valuable  work  on  evidence,  has  clearly  ex- 
pounded tills  rule,  and  presented  the  cases  in  which  the  attorney  may 
be  examined,  and  wiiich  are  therefore  sometimes  mentioned  as  excep- 
tions to  the  rule.  See  1  Greenleaf  on  Ev.,  sec.  244,  246,  and  the  fol- 
lowing cases  there  cited. 

Grenoiigh  v.  Gaskell,  1  My.  &  K.  1 04 ;  Desborough  v.  Rawlins,  3 
My.  &  Craig,  521,  522  ;  Lord  Walsingham  v.  Goodrich,  3  Hare's  Ch. 
R.  122;  Story's  Eq.  PI.  sec.  601,  602;  Boultonv.  Corporation  of  Liu- 
erjiool,  I  My.  &  K.  88 ;  Annesley  v.  E.  of  Anglesea,  17  Howell's  St. 
Trials,  1239,  1244;  Gillard  v.  Bates,  6  M.  &  W.  647;  Rex  v.  Brew- 
er, 6  C.  &  P.  S63. 

.  (2)  In  Rowe  v.  Teed,  15  Ves.  378,  Lord  Eldon  apparently  considers  a 
purchaser  for  value  without  notice  in  the  same  privileged  situation  as 
a  party  to  whom  questions  are  addressed,  the  answers  to  which  would 
criminate  him.  He  classes  the  two  together  as  parties  not  subject  to 
the  ordinary  rules,  which  oblige  a  defendant,  who  answers  a  bili,  to 
au6wer  "  throughout." 


S.  II.  p.  II.]  PLEAS.  385 

of  goods  purchased  of  a  bankrupt,  the  defendant 
may  plead  that  he  purchased  them  bond  fide  for  a 
valuable  consideration,  paid  before  the  commission 
of  bankrupt  was  sued  out,  and  before  he  had  any 
notice  of  the  bankruptcy  {n). 

Pleas  have  been  hitherto  considered  with  refer-  336 

ence  only  to  original  bills,  and  of  these  a  certiorari     [289] 
bill,  from  the  nature  of  the  proceedings  upon  it,  will  oneinRi.or  buu 

*  o  |-  '  in  the  nature  of 

not  in  general  admit  of  a  plea  (o).  But  the  same  ""g^"^! ^"i«- 
grounds  of  plea  will  hold  in  many  cases  to  the  seve- 
ral other  kinds  of  bills  according  to  their  respective 
natures ;  and  some  of  them,  as  already  observed, 
admit  of  ^  peculiar  defence  which  may  be  urged 
by  way  of  plea. 

Thus  if  a  bill  of  revivor  is  brought  without  suf-  Pieasto  biiia  of 

~  revivor. 

ficient  cause  to  revive  the  suit  against  the  defend- 
ant, and  this  is  not  apparent  on  the  bill,  the  defend- 
ant may  plead  the  matter  necessary  to  show  that 
the  plaintiff  is  not  entitled  to  revive  the  suit  against 
him  (p)  (1).     Or  if  the  plaintiff'  is  not  entitled  to 

(n)  Perrat  v.   Ballard,   2  Ca.  in  348 ;  S.  C.  2  Eq.  Ca.  Ab.  2 ;  Hug. 

Cha.    72 ;    Heyman    v.    Gomeldon,  gins  v.  York  Building  Comp.  2  Eq. 

Fiuch  R.  34 ;  Ahery  v.  Williams,  1  Ca.  Ab.  3.     A  persoa  made  a  defen- 

Verii.  27.  dant  by  a  bill  of  revivor,  cannot  sup- 

(0)  See,  however,  Cooiv.  Delehere,  port,  as  a  defence,  a  plea  previously 
3  Ch.  Rep.  66,  where  a  plea  to  a  set  up  by  the  original  defendant,  and 
certiorari  bill,  of  a  decree  in  the  in-  overruled.  Samuda  v.  Furtado,  3 
ferior  court,  is  mentioned.  Bro.  C.  C.  70. 

{p)  Harris  v.  Pollard,  3  P.  Wms. 

(1)  [See  the  form  of  a  plea  to  a  bill  of  revivor,  Willis,  583.] 
When  complainant  in  a  suit  assigns  all  interest  therein  to  a  third  per- 
son and  then  dies, his  grantee  cannot  revive  and  continue  the  proceedings 
by  a  simple  bill  of  revivor.  It  can  only  be  done,  in  such  case,  by  an  origi- 
nal bill  in  the  nature  of  a  bill  of  revivor  and  supplement.  And  where  a 
defendant  in  such  original  .'*uit  is  entitled  to  revive  the  proceedings  there- 
in, he  must  do  it  by  a  similar  bill.  To  entitle  a  defendant  to  file  a  bill  of 
revivor  where  the  adverse  party  neglects  to  revive,  such  defendant 


836  PLEAS.  [Chap.  II. 

revive  the  suit  at  all,  though  a  title  is  stated  in  the 
bill,  so  that  the  defendant  cannot  demur,  the  ob- 
jection to  the  plaintiff's  title  may  also  be  taken  by 
way  of  plea.  Indeed  it  seems  to  have  been  thought 
that  a  defendant  could  only  object  to  revivor  by 
way  of  plea  or  demurrer  (/j),  and  there  may  be 
great  convenience  in  thus  making  the  objection. 
For  if  the  defendant  objects  by  answer  merely,  the 
point  can  only  be  determined  by  bringing  the  cause 
regularly  to  a  hearing  (1)  ;  but  if  the  objection  is 
taken  by  plea  or  demurrer,  it  may  in  general  be 
[290]  immediately  determined  in  a  summary  way.  How- 
337  ever,  if  a  defendant  objects  by  answer  only  (2),  or 

does  not  object  at  all,  yet  if  it  appears  to  the  court 
that  the  plaintiff  has  no  title  to  revive  the  suit  against 
the  defendant,  he  can  take  no  benefit  from  it  (r) 
(3).     If  a  person  entitled  to  revive  a  suit  does  not 

(jt)  Harris  v.  Pollard,  3  P.  Wnis.         (r)  Harris  v.  Pollard,  3  P.  Wms. 

348.  348. 

t 

must  show  that  he  has  an  interest  in  the  revival  of  the  suit.  A  defen- 
dant may  revive  in  all  cases  after  decree,  upon  neglect  of  the  adverse 
party  to  do  so,  where  he  can  be  benefited  by  further  proceedings  in  the 
suit.     Anderson  v.  White,  10  Paige's  Ch.  R.  675. 

(1)  A  defendant  in  a  biH  of  revivor,  cannot  by  answer  prevent  a 
revival  of  the  suit,  although  he  denies  the  right  to  revive.  But  al- 
though the  defendant  cannot  by  answer  prevent  an  order  for  the  revival 
of  the  suit,  yet  if  the  facts  upon  which  the  title  to  revive  rests,  are 
denied  by  the  answer,  the  complainant  must  establish  the  right  to 
revive  at  the  hearing,  or  he  will  eventually  fail  in  the  suit.  Day  v. 
Potter,  9  Paige's  Ch.  R.  645. 

(2)  To  prevent  a  suit  from  being  revived,  either  a  plea  or  a  de- 
RcTiTor,  how  murrer  must  be  put  in  to  the  bill  of  revivor.    An  answer  insisting  that 

preren  e  .  ^^^^  plaintiff  has  no  right  to  revive  is  not  sufficient :  on  the  contrary, 

the  putting  in  of  an  answer  is  submitting  to  the  revivor.  Lewis  v. 
Bridgman,  2  Sim.  465.  See  form  of  a  plea  to  supplemental  bill, 
Willis,  685. 

(3)  W^here  a  complainant  files  a  supplemental  bill  for  the  purpose  of 
bringing  forward  new  matters  which  might  have  been  introduced  into 


S.  II.  p.  II.]  PLEAS.  337 

proceed  in  due  time  he  may  be  barred  by  the  sta- 
tute for  limitation  of  actions,  which  may  be  pleaded 
to  a  bill  of  revivor  afterwards  filed  (.s).  If  a  sup-  SJ°bZ^'" 
plementalbill  is  brought  upon  matter  which  arose 
before  the  original  bill  was  filed,  and  this  is  not  ap- 
parent on  the  bill,  the  defendant  may  plead  that 
fact  {t).  And  if  a  bill  is  amended  by  stating  a 
matter  arisen  subsequent  to  the  filing  of  the  bill, 
and  which  consequently  ought  to  have  been  the 
subject  of  a  supplemental  bill,  advantage  may  be 
taken  of  the  irregularity  by  way  of  plea,  if  it  does 
not  sufficiently  appear  on  the  bill  to  found  a  de- 
murrer (u)  ;  but  if  the  defendant  answers,  he  waives 
the  objection  to  the  irregularity,  and  cannot  make 
it  at  the  hearing  {x)  (4). 

A  cross-bill  differing   in  nothing  from  the  first  338 

species  of  bills,  with  respect  to  which  pleas  in  gen-  \>S». 

(«)  Hollingshead's  case,  1  P.  Wms.  Atk.  40  ;  Baldwin   v.   Mackoion,    3 

742  ;  and  see  2  Sch.  &.  Lefr.  632,  et  Atk.  817. 

scq.,  and  the  casee  cited;  and   Earl  (m)  See  BroM)/j  v.  Higden,  1    Atk. 

of  Egremont  v.  Hamilton,  1  Ball  &  291  ;  Jones  v.  Jones,  3  Atk.  217. 

B.  516.  (r)  Belchier   v.    Pearson,   at    the 

(<)  See  Lewellen  v.  Macwortk,  2  Rolls,  13th  July,  1782. 


Cleas  to  crow- 


the  original  bill  by  way  of  amendment,  the  defendant  sl.ould  make  his 
objection  thrreto  by  demurrer,  or  by  plea,  or  in  his  an>vver  to  the  sup- 
plemental bill.  And  it  is  too  late  to  make  such  objectidn,  for  the  first 
time,  at  the  hearing.  Fulton  Barik  v.  N.  Y.  <Sf  Sharon  Canal  Co.,  4 
Paige's  C.  R.  127. 

(1)  A  plea  tiiat  a  plaintiff  in  a  supplemental  bill,  as  well   as  in  an  pu-a  of  nointc- 
original  bi!},  has  disposed  of  his  share  and  interest  in  a  company  on  [f,j'in",'  aJjipie- 
behalf  of  the  members  of  which  the  original  and  supplemental  bills  mental  bill. 
were  filed,  and  that  at  the  time  of  filing  the  bill,  he  had  no  interest 
whatever  in  any  of  the  proceedings,  is  not  a  good  plea  to  such  .«upi)le- 
mental  bill,  where  the  relief  souglit  by  it  is  only  a  nuidificaliun  or  al- 
teration  of  the  relief  in  the  original  suit,  and  where   llie  original  and 
supplemental  bills  ought  therefore  to  be  considered  as  one  bill.     iSviall 
V.  Aitwood,\  y.  &  C.  Ex.  39. 


review. 


338  PLEAS.  [Chap.  II. 

eral  have  been  considered,  except  that  it  is  always 
occasioned  by  a  former  bill,  it  is  not  liable  to  any 
plea  which  will  not  hold  to  the  first  species  of 
[2911  bills.  And  a  cross-bill  in  general  is  not  liable  ta 
some  pleas  which  will  hold  to  the  first  species  of 
bills  ;  as  pleas  to  the  jurisdiction  of  the  court,  and 
pleas  to  the  person  of  the  plaintiff,  the  sufficiency 
of  which  seem  both  affirmed  by  the  original  bill  ; 
unless  the  cross-bill  is  exhibited  in  the  name  of 
some  person  alone,  who  is  alone  incapable  of  in- 
stituting a  suit,  as  an  infant,  a  ferae  covert,  an 
idiot,  or  a  lunatic  (ti). 
Pleas  to  bills  of  It  has  bccn  already  mentioned  (x)  that  a  part  of 
the  constant  defence  to  a  bill  of  review,  for  error 
apparent  on  a  decree,  has  been  said  to  be  by  a  plea 
of  the  decree  («/)  ;  but  that  a  demurrer  seemed  to 
be  the  proper  defence,  and  that  the  books  of  prac- 
tice gave  the  form  of  a  demurrer  only  to  such  a 
bill  (z)  (1).  Where  any  matter  beyond  the  de- 
cree, as  length  of  time  (a),  a  purchase  for  a  valu- 
able consideration,  or  any  other  matter,  is  to  be 
oflfered  against  opening  of  the  enrolment,  that  mat- 

(u>  See  above,  p.  240,  note  (»).  (r)  And  see   Needier  v.  Kendall, 

(z)  Page  241.  Finch  R.  468. 

(y)  Dancer  \.Evett,  1  Vern.  392  ;  (a)  Gregor  v.   Moleswortk,  2  Ves. 

Carlish  v.  Gover,  Nels.  Rep.  52.  109  ;  but  see  above,  p.  242. 


(1)  It  is  not  necessary  to  plead  the  former  decree,  if  such  decree  ia 
fully  and  fairly  stated  in  the  bill  of  review.  Webb  v.  Pell,  3  Paige's 
C.  R.  368.  The  error  must  appear  on  the  decree  and  pleadings  ;  for 
the  evidence  in  the  case  at  large  cannot  be  examined  to  ascertain 
whether  the  court  misstated  or  misunderstood  the  fact.  Dexter  v.  Ar- 
?iold,  5  Mason's  C.  C.  R.  309. 


S.  II.  p.  II.]  PLEAS.  339 

ter  must  be  pleaded  (b).  And  if  a  demurrer  to  a 
bill  of  review  has  been  allowed,  and  the  order  al- 
lowing it  is  enrolled,  it  is  an  effectual  bar  to  a  new 
bill  of  review  (c)  on  the  same  grounds,  and  maybe  [292] 
pleaded  accordingly.  To  a  bill  of  review  of  a  de- 
cree for  payment  of  money,  it  has  been  objected 
by  plea  that  according  to  the  rule  of  the  court  (d) 
the  money  decreed  ought  to  have  been  first  paid  ; 
but  the  rule  appears  to  have  been  dispensed  with 
on  security  given  (e)  ;  and  as  the  bill  of  review 
would  not  stay  process  for  compelling  payment  of 
the  money,  it  may  be  doubted  whether  the  objec- 
tion was  properly  so  made.     A  bill  of  review,  upon 

(b)  Hartwell  v.  Townsend,  2  Bro.  Amb.  229  (2). 
P.  C.   107,  Toml.   Ed.  (1),  and  see         (c)  Z>cnny  v.  F»7mer,  2  Ca.  in  Cha. 

Gorman  V.  M'Cullock,  5  Bro.  P.  C.  133;  S.  C.    1    Vern.   135;    1   Vern. 

597,  Toml.    Ed.      As    instances  in  417;    Pitt  v.   Earl  of    Arglass,   1 

which   the  error  alleged  was  not  in  Vern.  441  ;  Woots  v.  Tucker,  2  Vern. 

the  body   of  the  decree,  see  Cran-  120. 

borne  v.  Dalmahoy,  1  Ch-  Rep.  231 ;         ((/)  Ord.  in  Ch-  Ed.  Bea.  3. 
Smilh  V.  Turner,  1  Vern.  273 ;   and         («)    Savile    v.    Darcy,   2   Freem- 

eee  2  Ves.  488  \.  and  Bradish  v.  Gee,  172  ;  S.  C.  1  Ca.  in  Cka.  42. 

(1)  Mr.  Beames,  in  his  Pleas  in  Equity,  page  313,  Am.  ed.  eaya, 
*'The  case  of  Hurlwell  v.  Townsend,  2  Bro.  P.  C.  107,  contains  an  im- 
portant distinction  with  respect  to  this  subject,  that  though  the  plain- 
tiff in  a  bill  of  review,  is  confined  to  errors  upon  the  face  of  the  record, 
and  cannot  go  out  of  it,  yet  the  defendant  is  at  liberty  to  allege  every 
matter  relevant  to  his  defence,  whether  in  or  out  of  the  record,  by  way 
of  a  plea,  as  a  release,  &c.,  to  prevent  disturbing  the  decree,  nor  has 
he  any  other  method  of  introdiicing  it,  and  when  pleaded  tlie  court  is 
to  judge,  whether  tlie  matter  alleged  is  sufficient  to  preclude  the  plain- 
tiff from  the  review  he  seeks.  That  case  also  decides,  that  whilst 
neither  an  assignee  nor  devisee  can  have  relief  by  a  bill  of  review,  all 
the  parties  to  the  original  bill  must  be  made  parties  to  the  bill  of  re- 
view, on  that  principle  of  justice,  that  a  party  is  not  to  be  condemned 
without  being  heard." 

(2)  [And  see  cases  collected  in  Blunt's  edition  of  Ambler,  same 
page,  note  (1).  3  Paige,  368.  Story's  Equity  Pleading,  2d  edition, 
\  833,  page  639.] 

28 


839  PLEAS.  [Chap.  U. 

the  discovery  of  new  matter,  seems  liable  to  any 
plea  which  would  have  avoided  the  effect  of  that 
matter  if  charged  in  the  original  bill.  It  seems  to 
have  been  doubted  whether  the  fact  of  the  discove- 
ry of  the  matter  thus  alleged  to  support  a  bill  of 
review,  can  be  traversed  by  plea  after  the  court 
upon  evidence  of  the  fact  has  given  leave  to  bring 
the  bill,  even  if  the  defendant  could  traverse  the 
fact  by  positive  assertion  of  some  fact  which  would 
demonstrate  that  the  matter  was  within  the  know- 
ledge of  the  party,  so  that  he  might  have  had  the 
benefit  of  it  in  the  original  suit.  But  if  the  fact  of 
340  the  discovery  is  in  issue  in  the  cause,  it  ought  to  be 

proved  to  entitle  the  plaintiff  to  demand  the  judgment 
of  the  court  on  the  matter  alleged,  as  ground  for  re- 
[293]     viewing  the  decree  (/) ;  and  it  may  consequently  be 
disproved  by  evidence  on  the  part  of  the  defendant. 
Sentai"  Wfn  Upon  a  supplcmcutal  bill  in  the  nature  of  a  bill  of 
£u« "of "review,  rcvicw  of  a  decree  not  signed   and  enrolled,  upon 
the   alleged  discovery  of  new  matter,  it  has  been 
said,  that  if  the  defendant  can  show  that  the  al- 
legation is  false,  he  must  do  so  by  plea,  and   that 
it  is  too  late  to  insist  upon  it  by  answer  (g)  ;  but  as 
the  bill  must  allege  the  fact  of  discovery,  and  that 
fact  must  be  the  ground  of  the  proceeding,  it  should 

(/)  See  p.  107.  principally  on  the  ground,  that  length 
(g)  2  Alk.  40.  The  accuracy  of  of  time,  with  collateral  eircum- 
this  report  seems  very  questionable,  stances,  ought  to  operate  as  a  bar  to 
The  supplemental  bill  was  brought  on  the  plaintiff's  title  under  the  old  set- 
discovery  of  an  old  settlement,  found  tlement,  which  was  dated  in  1G55; 
after  a  decree  made  in  1733.  The  the  defendants  claiming  under  a  sub- 
cause  came  on  upon  the  supplemen-  sequent  settlement  made  in  1694, 
tal  bill,  and  a  rehearing  of  the  decree  which  had  been  constantly  acted  up- 
complained  of,  7  July,  1740.  The  on  by  the  family.  MS.  N.,  S.  C.  2 
decree  was  affirmed,  and  the  supple-  Eq.  Ca.  Ab.  579. 
meutal  bill  dismissed  without   costs. 


S.  II.  p.  II.]  PLEAS.  340 

seem  that  it  is  equally  liable  to  traverse  by  answer, 
and  by  evidence,  as  any  other  fact  stated  in  a  bill. 
If  a  decree  is  souffht  to  be  impeached  on  the  ground  piea*  to  bnu  to 

or  D  impeach  decreet 

of  fraud,  the  proper  defence  seems  to  be  a  plea  of  *^°'" '^"''"* 
the  decree    accompanied  by  a  denial  of  the  fraud 
charged  (A). 

If  a  plaintiff  filing  a  bill  to  carry  a  decree  into  Tarry'decre'es^ 
execution  has  no  right  to  the  benefit  of  the  decree,  '"'^  <=^'=<="^°|j^ 
the  defendant  may  plead  the  fact,  if  it  is  not  so  ap- 
parent on  the  bill  as  to  admit  of  a  demurrer.    Bills 
in  the  nature  of  bills  of  revivor,  or  of  supplemental 
bills,  are  liable  to  the  same  pleas   as  the  bills   of    [294] 
whose  nature  they  partake. 

Having  thus  considered  some  of  the  principal 
grounds  upon  which  pleas  to  the  several  kinds  of 
bills  may  be  supported,  it  will  be  proper  to  observe 
some  particulars  with  respect  to,  1,  the  nature  of 
pleas  in  general  ;  2,  their  form  ;  3,  the  manner  in 
which  they  are  offered  to  the  court ;  and  4,  the 
manner  in  which  their  validity  is  decided. 

1.  In  pleadinor  there  must  in  general  be  the  same     '  The  n»turo 

,  ,  .  '"'*i  requiiite*  ox 

Strictness  in  equity  as  at  law  (i)  ;  at  least  in  matter  p^*""- 
of  substance  (2).    A  plea  in  bar  must  follow  the  bill, 

(h)  Wichalse  V.   Short,  3  Bro.  P.  see  p.  281,  et  seq. 

C.  558,  Toml.  Ed.;  S.C.  7  Vin.Ab.  (t)  1   Vern.  114;  2  Atk.  G32 ;  13 

398,   pi.  15;   2    Eq.  Ca.  Ab.  177;  Ves.  233  (1). 
Loyd  V.  Mansell,  2  P.  Wms.  73  ;  and 

(1)  [Burdin  V.  Grew,  8  Pickering's  R..  108;    Beames' Pleas,  pre- 
face ;   Willis  on  Pleading,  486  ;   1  Montague  on  Pleadinnf,  26.  ]     See 

Marselisw  The  Morris  Canal  i\-  B.  Co.,  Saxton's  C.  R.  (N.  J.)  31. 

(2)  Where  an  information  agitiust  a  company,  after  statinjj  several  riea  bad  in  form 
charities  in  \vhic!i  that  company  alone  are  interested,  CDntains  an  alle-  ""'i  •"''»'*"<:"'• 
gation  as  to  another  charity  in  wliicii  that  and  another  company  are 

jointly  interested;    and  that  al'egation  is  afterwards  struck  out  by 
amendment,  in  order  to  save  making  such  other  company  partiea;  and 


842  PLEAS.  [Chap.  II. 

and  not  evade  it,  or  mistake  the  subject  of  it  (A;). 
If  a  plea  does  not  go  to  the  whole  bill,  it  must  ex- 

(Jt)  Asgill  V.  Dawson,  Bunb.  70 ;  Child  v.  Gibson,  2  Atk.  603. 


in  place  of  such  allegation  another  is  substituted,  that  there  are  other 
funds  vested  in  the  former  company  upon  "the  like  or  corresponding 
trusts  ;"  in  such  case,  a  plea  of  the  will  of  the  person  who  created  the 
charitable  trust  struck  out  of  the  information,  and  tliat  the  other  com- 
pany above  nlentioned  are  not  parties,  is  bad  in  point  of  form  ;  because 
it  is  in  fact  an  answer  as  to  that  of  which  it  means  to  protect  the  de- 
fendant from  making  discovery  ;  and  it  is  also  bad  in  substance,  be- 
cause comparing  the  amended  information  with  the  original,  "  the  like 
or  corresponding  trusts"  mean  trusts  for  the  exclusive  benefit  of  the 
company  interested  in  the  other  trusts.  Attorney  Gen.  v.  Merchant 
Taylors^  Company,  5  Sim.  323. 
If,  to  all  the  relief  and  discovery  of  a  bill,  except  so  much  as  seeks  a 


Negative  plea, 


denying  that       discovery  of  an  alleged  promise  which  constitutes  the  whole  equity,  a 

ted  out'^of  ^he^    defendant  pleads,  in  bar,  that  no  such  promise  was  made,  and,  by  an 

bill  by  tte  plea,    j^j^g^gj  acompanying  the  plea,  again  denies  the  premise,  the  plea  is 

bad  ;  because  the  plea  is  to  the  bill,  taking  away  that  which  alone 

constitutes  the  equity;  so  that  if  issue  were  taken  on  it  there  would 

be  in  the  issue  no  affirmative,  but  only  a  negative  of  that  which  nobody 

affirms.     Denys  v.  Shuclburgh,  6  Law  J.  (N.  S.)  330,  L.  C. 

Plea  coupled      If  a  plea  is  coupled  with  an  averment  which  raises  an  issue  not 

ei8tent^aver-^°°    raised  by  the  bill,  and  which,  instead  of  supporting  the  plea,  is  in  fact  in- 

™^*-  consistent  with  the   plea,  the  plea  will  be  overruled.     Emmotl  v. 

Mitchell,Q3ur.ni,y.C.E. 
Plea  to  the  relief      If  a  p'ea  purports  to  be  a  plea  to  the  relief  only,  but  yet  concludes 
withderf^in^g'^a  ^^^^  a  demand  of  the  judgment  of  the  court  whether  the  defendant 
discovery.  ought  to  be  compelled  to  make  any  other  answer,  such  a  plea  is  in- 

formal :  for  if  the  plea  is  to  the  relief  only,  the  defendant  professes  that 
that  he  will  give  the  discovery.     King  v.  Heming,  9  Sim.  59. 
Plea  of  the  law       A  plea  that  by  the  laws  of  a  foreign  country  an  agreement  is  void, 

of  a  foreign  .  —.,■,•■  •  i  •  o  .  ,  •      ,       i  i  .    . 

etate.  18  sufficiently  definite,  without  specifying  the  particular  law   which 

renders  the  agreement  void.     Heriz  v.  Riera,  11  Sim.  318. 

Plea  to  a  bill  of      If  a  bill  of  discovery  is  filed  in  aid  of  an  action,  and  the  right  of 

of  an  action.  action  IS  founded  upon  a  variety  of  circumstances  put  together,  a  plea 
which  attempts  to  show  that  the  action  cannot  be  maintained  by  con- 

'  fessing  and  avoiding  some  of  the  circumstances  and  denying  the  rest, 

is  not  good ;  because  it  reduces  the  plaintiff  to  the  necessity  of 
proving,  in  a  court  of  equity,  without  a  discovery,  that  he  has  a  right 
to  support  that  action.     Robertson  v.  Lubbock,  4  Simons  C.  R.  161. 


S.  II.  p.  II.]  PLEAS.  342 

press  to  what  part  of  the  bill  the  defendant  pleads, 

and  therefore  a  plea  to  such  parts  of  the  bill  as  are 

not  answered  must  be  overruled  as  too  general  (/)  (1). 

So  if  the  parts  of  the  bill  to  which  the  plea  extends 

are  not  clearly  and  precisely  expressed  ;  as  if  the  343 

plea  is  general,  with  an  exception  of  matters  after 

mentionedj  and  is  accompanied  by  an  answer,  the 

plea  is  bad.     For  the  court  cannot  judge  what  the 

plea  covers,  without  looking  into  the  answer,  and 

determininfj  whether  it  is  sufficient  or  not,  before 

the  validity  of  the  plea  can  be  considered  (m)  (2). 

It  is  generally  conceived  that  a  plea  ought  not  to     [295] 
contain  more  defences  than  one  ;  and  though  a  plea 
may  be  bad  in  part  and  not  in  the  whole  (n),  and 
may  accordingly  be  allowed  in  part  and  overruled 
in  part  (3)  yet  there  does  not  appear  any  case  in 

(Z)   Anon.  3    Atk.  70;  Broom   v.  (n)   1  Atk.  53,  451,  539;  2  Alk. 

Horsley,  Mosely,  40.  44,  284  ;  1  Ves.  205  ;  Welby  v.  Duke 

(m)    Salkeld   v.   Science,  2  Ves.  of  Portland,  2  Bro.  P.  C.  39,  Toml. 

107;  Howe  v.  Duppa,  1  Ves.  &  B.  Ed.;  1  Jac.  R.  466. 
511. 

(1)  When  a  plea  does  not  go  to  the  whole  bill,  it  must  distinctly 
Bet  out  the  part  of  the  discovery  or  relief  intended  to  be  covered  by  it, 
either  in  the  words  of  the  bill  or  by  such  a  description  that  the  court 
will  not  be  obliged  to  look  into  the  whole  bill  to  at^certain  the  part 
thereof  which  is  covered  by  the  plea.  But  where  a  plea  is  overruled 
upon  this  ground,  the  defect  being  merely  formal,  it  will  be  overruled 
without  prejudice  to  the  defendant's  right  to  insist  upon  the  same 
matters  in  his  answer,  as  a  defence  to  the  suit  pro /an^o.  Janis  v. 
Palmer,  11  Paige's  Ch.  R.  650. 

(2)  [And  see  case  of  Leaycrafl  v.  Dempsey,  in  note  at  p.  300,  post.J 

(3)  [French  V.  Shotwell,5}.  C.  R.  655;  JS.  C.  on  appeal,  120  J.  R. 
242  ;  Lord  Drogheda  v.  Malone,  Finlay'e  Digest,  449.] 

Such  is  the  determined  discretionary  control  of  the  court  over  the 
technicalities  of  pleading,  that  a  sacrifice  of  the  merits  of  the  case  to 
form  is  not  permitted.  VViiile  the  defendant  will  have  the  benefit  of 
his  defence,  the  proceedings  by  amendinenl  or  others^ise,  will  be  bo 
ehaped  as  to  secure  to  the  complainant  also  a  full  hearing  on  the  whole 


343  PLEAS.  [Chap.  II. 

which  two  defences  offered  by  a  plea  have  been 
separated,  and  one  allowed  as  a  bar.  Thus  if  a 
defendant  pleads  a  fine  and  non-claim,  which  is  a 
legal  bar,  and  a  purchase  for  a  valuable  considera- 
tion without  notice  of  the  plaintiff's  claim,  which 
is  an  equitable  bar  ;  if  either  should  appear  not  to 
be  a  bar,  if  the  defendant  by  answer  should  admit 
facts  amounting  to  notice  ;  or  if  the  plea  in  respect 
to  either  part  should  be  informal ;  there  seems  to 

of  his  case.  Hence,  as  observed,  in  the  text,  thounh  the  general  rule 
is  that  but  one  defence  and  facts  only  conducive  to  a  single  point,  are  al- 
low^ed  in  a  plea;  yet  double  pleas  are  allowable,  and  a  plea  may  be  allowed 
in  part,  its  benefit  left  to  the  hearing,  or  ordered  to  stand  for  an  answer,  or 
otherwise  as  may  best  subserve  the  purposes  of  justice.  The  Supreme 
Court  of  the  United  States,  have  adopted  this  rule  for  its  Equity  Courts, 
the  English  Chancery  practice,  recently  took  an  enlarged  view  of  the 
above  principle  in  The  State  of  Rhode  Island  v.  Slate  of  Massachusetts, 
14  Peters,  210,  and  held  that  in  ordinary  cases  between  individuals, 
Chancery  has  always  exercised  an  equitable  discretion  in  relation  to  the 
rules  of  pleading,  when  necessary  to  do  so  for  the  purposes  of  justice. 
But  where  two  states  were  contesting  a  boundary  the  court  would  mould 
the  rules  of  Chancery  practice  and  pleading  on  the  most  liberal  princi- 
ples, so  as  both  parties  might  present  their  respective  claims  in  their  full 
strength,  and  the  case  be  bruuoht  to  a  final  hearing  on  its  merits. 

A  defendant  in  a  suit  in  Chancery  cannot  put  in  several  distinct  de- 
fences, by  plea,  to  the  whole  of  the  complainant's  bill,  or  the  same  part  of 
the  bill  without  the  special  leave  of  the  court.  Nor  can  he  set  up  two 
distinct  defences  in  the  same  plea  without  rendering  such  plea  bad  for 
duplicity.  Where  great  inconvenience  will  result  to  the  defendant  in  a 
suit  in  Chancery  by  compelling  him  to  answer  the  complainant's  bill, 
the  court  upon  special  application  may  give  him  permission  to  plead 
two  separate  pleas  in  bar.  The  cases  in  which  the  court  allows  the 
defendant  to  make  several  defences  by  pleas  to  the  complainant's  bill) 
are  those  in  which  the  making  the  defences  by  answer  would  render  it 
necessary  for  the  defendant  to  set  out  very  long  accounts,  or  where 
the  discovery  sought  by  the  bill  would  be  productive  of  injury  to  the 
defendant  in  his  business  or  otherwise.  Didier  v.  D^xvison,  10  Paige, 
515.  A  defendant  in  a  suit  in  Chancery  may  in  his  answer  set  up  as 
many  defences  as  he  thinks  proper,  although  he  cannot  do  so  by  plea. 
But  in  a  sworn  answer  he  cannot  set  up  two  distinct  matters,  which 
are  so  inconsistent  with  each  other,  that  it  is  impossible  that  both  of 
them  can  be  true.     Hopper  v.  Hopper,  11  Paige's  Ch.  Rep.  46. 


S.  II.  p.  II.]  PLEAS.  343 

be  no  case  in  which  the  court  has  separated  the 
two  matters  pleaded,  and  allowed  one  as  a  bar 
and  disallowed  the  other.  And  as  the  end  of 
a  plea  is  to  reduce  the  cause,  or  the  part  of  it 
covered  by  a  plea,  to  a  single  point  (o),  in  order  to 
save  expense  to  the  parties,  or  to  protect  the  de- 
fendant from  a  discovery  which  he  ought  not  to  be 
compelled  to  make  ;  and  the  court  to  that  end  in-  344 

stantly  decides  on  the  validity  of  the  defence, 
taking  the  plea,  and  the  bill  so  far  as  it  is  not  con- 
tradicted by  the  plea,  to  be  true  ;  a  double  plea  is 
generally  considered  as  informal  and  improper  {p). 

(0)  1  Atk.  54;  1  Bro.  C.  C.  417;  B.  150;  3  Madd.  8;  4  Madd.  245. 
15  Ves.  82;  1  Ves.  &  B.  153,  note,  Bat  it  has  been  determined,  that 
156-7;  1  Madd.  R.  194.  where  great  inconvenience  would  re- 

(p)    Whitbread  v.  Brockhurst,    1  suit  from  obedience  to  this  rule,  tlie 

Bro.  C.  C.  404;  S.  C.  2  Ves.  &  B.  court  on  a  previous    special  applica- 

153,   note.  Nobkissen   v.  Hastings,  tion  will  give  to  the    defendant  leave 

4  Bro.  C.  C.  252  ;  S.  C.  2  Ves.  Juu.  to    plead     double    (1).       Gibson   v. 

84;  Wood  V.  Strickland,  2  Ves.  &  Whitehead,  4  Madd.  241  (2). 

(1)  In  Sallusand  Sallus  v.  Tobias  and  Seaman,!  Johns.  C.  R.  214, 
Mr.  Chancellor  Kent  seems  to  admit  that  on  special  application  a  de- 
fendant might  be  allowed  to  plead  double.  The  defendants  there 
pleaded,  tlie  statute  of  limitations  and  a  discharge  of  one  of  the  defen- 
dants under  an  insolvent  act ;  ami  tliey  were  ordered  to  elect  by  whicli 
plea  they  would  abide.  Tlie  Chancellor  there  says:  "The  reason 
why  this  court  does  not  admit  such  pleas,  ccntaining  different  and 
distinct  points,  is,  that^ou  may  put  all  the  different  circumstances  to- 
gether in  your  answer,  which  you  cannot  do  at  common  law.  Tiiereis 
therefore,  not  the  same  reason  in  equity,  as  at  law,  fur  pleading  double. 
The  use  of  a  plea  here  is  to  save  lime,  expense  and  vexation.  If  one 
point  will  put  an  end  to  the  whole  cause,  it  is  important  to  the  admi- 
nistration of  justice,  that  it  should  be  pleaded;  but  if  you  are  to  state 
many  matters,  tlie  answer  is  the  more  commodious  form  to  do  it  in. 
If  the  defendant  might  be  permitted  to  bring  two  points,  on  which  the 
causL^  depends,  to  issue,  by  his  plea,  ho  might  bring  three  or  twenty, 
and  so  on  until  all  the  matters  in  the  bill  are  brought  to  issue  by  the 
plea."  See  also  Verchild  v.  Paul,  1  Kf'cn's  Ch.  It.  87,  90.  Robert- 
son V.  Lubbock,  4  Simons'  C.  R.  161.  Dogardus  v.  lyinity  Church,  4 
Paige's  Ch.  R.  178. 

{Ji)  Leave  will  be  given  to  put  in  a  double  plea  where  extraordinary 


344  PLEAS.  [Chap.  II . 

[296]     For  if  two  matters  of  defence  may  \)e  thus  offered. 

Leave  to  plead  inconvenience  might  arise  if  a  double  plea  were   not  allowed.     Thus, 

double.  jjj  a  guit  as  to  an  invention,  where  the  defendant  is  required  to  set  forth 

accounts  of  extraordinary  length,  at  a  great  expense,  and  at  the  risk 

of  making  an  inconvenient  exposure  of  his  ifTairs,  leajfe,  will  be  given 

to  plead,  first,  that  where  the    invention  13  new,  it  .is>not.  ttseful ;  and 

secondly,  that  where  it  is   useful,  it  is  not  jiewi:  ,£^ :/,  J\fqphall,  1 

Keen,  190.     In  this  case  Lord  Langdale  allo\ve3  two  ple4s  to  Oe  filed 

and  states  his  reasons  as  follows : — "  Upon  the  subject  of  double  pleas 

there  has  been  considerable  argument  at  the  bar.  ■  It  has  been  said  that 

a  double  plea  is  only  allowed  in  cases  where  there  li  a  sort  of  double 

or  alternative  claim  in  the  bill.     In  the  case  cited  for  the  purpose  of 

supporting  that  proposition  there  is  such  an  alternative  claim,  hut  there 

is  nothing  to  show  that  this  is  the  principle,  still  less  the  only  principle 

upon  which  the  couYt  proceeds   in  allowing  double  pleas.     It  appears 

to  me  that  the  principle  upon  which  the  court  proceeds,  depends  very 

much  upon  the  extraordinary  inconvenience  that  might  arise,  if  the 

defendant  were  not  allowed  in  many  cases  to  ptead  double.     How  far 

and  in  what  cases  a  defendant  may  if  he  answer  protect  himself  against 

answering  fully  has  been  a  subject  much  controverted  and  upon  which 

judges  have  differed.     A  defendant  denying  the  principal  fact  upon 

which  the  plaintiff  rests  his  claim  to  discovery  is  entitled  to  protect 

himself  by  plea  against  answering,  and  if  his  plea  be  accompanied  by 

an  answer  the  answer  must  be  so  framed  as  to  support  but  not  to 

overrule  the  plea.     Lord  Thurlow's  objection  to  bringing  two  points 

in  issue  by  plea  has  been  adverted  to  in  the  argument.     Why,  says 

Lord  Thurlow,  it  may  be  asked,  should  not  the  defendant  be  permitted 

to  bring  two  points  on  which  the  cause  depends  to  issue  by  his  plea  ? 

The  answer  is,  because  if  two  he  may  as  well  bring  three  points  to 

issue,  and  so  on  till  all  the  matters  in  the  bill  are  brought  into  issue  ' 

upon  the  plea.     This  objection  is  not  applicable  to  the  modern  practice 

of  allowing  double  pleas,  because,  though  a  defendant  may  file  a  single 

plea  without  an  application  to  the  court,  he  cannot  put  in  a  double 

plea  without  such  an  application,  and  the  liberty  if  sought  to  be  abused 

is  easily  restrained.     The  general  rule  that  if  the  defendant  answers 

he  must  answer  fully,  however  established,  is  no  doubt  a  rule  that  in 

many  cases  occasions  great  hardship  to  the  defendant.     The  only  de* 

ence  is  a  demurrer  or  a  plea.     A  demiirrer  is  not  a  convenient    mode 

of  defence,  by  ^reason  of  the  admission  wiiich  it  involves  if  the  case 

made  by  the  bill,  and  the  rules  as  to  pleas  in  this  court  ar6  of  such 

exceeding  nicety  and  difficulty,  that  it  is  almost  impossible  for  parties 

who  have  a  right  to  plead,  to  take  full  advantage  of  their  right.     The 

only  way  of  saving  defendants  from  the  hardship  to  which  in  many 


S.  II.  p.  II.]  PLEAS.  344 

the  same  reason  will  justify  the  making  any  number 
of  defences  in  the  same  way,  by  which  tlic  ends 
intended  by  a  plea  would  not  be  obtained  ;  and  the 
court  would  be  compelled  to  give  instant  judgment 

cases  they  would  be  subjected  by  making  a  full  discovery,  is  by  afford- 
ing to  them  such  facilities  as  can,  by  the  rules  of  the  court,  be  af- 
forded with  respect  to  pleas.  I  do  not  think  a  great  ii.dulcencc  is 
sought  from  the  court,  where  by  obtaining  it  the  defendant  will  obtain 
only  that  which  the  court  tiiinks  right.  With  respect  to  this  particu- 
lar case,  if  it  be  a  matter  of  indulgence,  I  think  the  defendants  under 
all  the  circumstances  are  entitled  to  it.  The  defendants  are  required 
by  the  bill  to  set  forth  accounts  of  extraordinary  length  at  a  great  ex- 
pense, and  at  the  risk  (though  this  does  not  appear)  of  making  an  incon- 
venient exposure  of  their  affairs.  This  application  therefore,  must  be 
granted,  but  according  to  the  course  of  the  court  upon  the  condition  of 
the  defendant's  paying  the  costs." 

And  when  it  will  be  no  disadvantage  to  the  plaintiff,  and  a  great 
convenience  to  the  defendant  that  the  defences  should  be  put  in  the 
form  of  pleas,  in  order  that  their  validity  may  be  considered  before  a 
discovery  is  enforced,  leave  will  be  given  to  plead  to  an  ejectment 
bill ;  first,  that  a  party  is  not  heir  ;  and,  secondly,  that  even  if  he 
were  heir,  the  plaintiff's  rigiit  is  barred  by  the  statu'.e  of  limitations. 
Bampton  v.  Birchell,  4  Beav.  558. 

[The  court  may  permit  a  defendant  to  plead  double,  under  special 
circumstances  ;  as  where  he  could  not  make  his  defence  by  answer 
without  setting  out  a  long  account,  which  would  be  unnecessary,  if  the 
defence  sought  to  be  made  hy  plea  was  valid.  Vari  Iloi.k  v.  Whiilock,, 
3  Paige's  C.  R.  409.  The  case  of  Gibson  v.  Whitehead,  sujira,  which 
is  doubted  by  Mr.  Willis,  is  upheld  by  Chancellor  Walworth  in  the 
above  case  of  Van  Hook  v.  Whitlock;  and  see  Lube,  348.] 

A  plea  of  the  statute  of  limitations,  setting  up  two  matters,  either  of 
which  establishes  that  defence,  is  not  for  that  cause  a  double  plea.  2 
Sandford's  Ch.  R.  61. 

The  court  will  not  allow  the  defendant  to  plead  double,  upon  an  af- 
fidavit merely,  showing  that  he  has  several  defences,  of  which  he 
might  avail  himself  by  plea,  if  permitted  to  do  so.  The  general  rule 
of  the  Court  of  Chancery  is,  that  if  a  defendant  wishes  to  set  up  n)ore 
than  one  defence  to  the  complainant's  bill,  he  must  do  it  by  answer; 
and  to  justify  the  court  in  departing  from  this  general  rule  the  defend- 
ant must  make  out  a  very  special  case  of  hardship  and  inconvenience 
to  him  if  he  slmuld  be  required  to  make  his  several  defences  by  answer. 
Didierv.  Davisan,  10  Paige,  Ch.  K.  515. 


344  PLEAS.  [Chap.  II. 

on  a  variety  of  defences,  with  all  their  circumstan- 
ces, as  alleged  by  the  plea,  before  they  are  made 
845  out  in  proof;  and  consequently  would  decide  upon 

a  complicated  case  which  might  not  exist.  This 
reasoning  perhaps  does  not  in  its  extent  apply 
with  equal  force  to  the  case  of  two  several  bars 
pleaded  as  several  pleas,  though  to  the  same 
matter :  and  it  may  be  said  that  such  pleading  is 
admitted  at  law,  and  ought  therefore  to  be  equally 
so  in  equity.  But  it  should  be  considered  that  a 
plea  is  not  the  only  mode  of  defence  in  equity,  and 
that  therefore  there  is  not  the  same  necessity  as 
at  law  for  admitting  this  kind  of  pleading.  But 
though  a  defence  offered  by  way  of  plea  consist  of 
a  great  variety  of  circumstances,  yet  if  they  all  tend 
to  one  point  the  plea  may  be  good  (1)  (o).     Thus  a 

(o)   Cann  v.  Cann,  1  P.  Wms.  725 ;     Ashurst  v.  Eyres,  3  Atk.  341 ;  15 

.   .  (1)  See  p.  285,  n.     A  distinct  plea  may  be  put  in  to  distinct  parts 

distinct  parte  of  of  the  relief  sought  by  the  same  bill.     Emmotlw  3Iilchell,9  Jur.  171, 
*^"'-  V.  C.  E. 

But  each  "  plea  in  order  to  be  good,  must  be  an  allegation  or  denial 
of  some  leading  fact,  or  of  some  matters  which,  taken  collectively, 
make  out  some  general  fact."  Robertson  v.  Lubbock,  4  Sim.  179. 
Multifarious  or  Heiice,  inasmuch  as  the  fact  of  a  party  being  heir  is  consistent 
double  pleas.  ^yjj.jj  jj-jg  j-^gj  Qf  jhere  being  no  descent;  and  as  there  may  have  been 
a  descent  without  a  seisin ;  a  plea  of  not  heir,  no  descent,  and  no 
seisin,  is  a  plea  of  several  matters  and  multifarious.  Chadwick  v. 
Broadwood,  3  Beav.  530. 

A  plea  that  a  person  had  not  intermeddled  with  a  testator's  estate, 
and  that  he  had  renounced  probate,  is  not  a  double  plea  to  a  bill  alleg- 
ing that  he  had  possessed  certain  of  the  testator's  effects,  and  was  the 
personal  representative  of  the  testator ;  for  both  the  averments  ia  the 
plea  only  amount  to  this,  that  the  character  of  executor  never  was  in 
him.     Sirickla7id\.  Strickland,  12  Sim.  253. 

A  plea  that  the  plaintiff  had  not  obtained  his  certificate  imder  a 
commission  of  bankruptcy,  and  that  no  dividend,  or  a  dividend  or  di- 
vidends less  than  fifteen  shillings  in  the  pound  had   been   paid,  and 


S.  11.  p.  II.]  PLEAS.  346 

plea  of  title  deduced  from  the  person  under  whom 

Ves.  82,  377 ;  Leonard  v.  Leonard,  of  diBtiiict  propositions,  and  a  single 

1  Bail,   &  B.  323   (I).     And  see  2  plea    consisting    of   one     connected 

Blackst.  1028,  as  to  the  distinction  proposition  formed  from  multifarioiu 

between    a   double    plea,    consisting  circumstances.  (2) 

that  the  assignee  was  a  necessary  party,  is  not  a  double  plea,  because 
the  facts  as  to  the  certificate  and  dividend  lead  but  to  one  point,  name- 
ly, the  necessity  of  the  assignee  being  a  party.  Kirkman  v.  Andrews, 
4  Beav.  554. 

A  plea  of  a  stated  account,  and  of  a  release,  or  receipt  of  the  bal- 
ance, is  not  a  double  plea.  And  such  account,  if  not  impeached  by 
the  bill,  need  not  be  annexed  to  the  plea.  Holland  v.  Sprowle,  6 
Sim.  23. 

So  a  plea  of  the  statutes  of  limitation,  21  Jac.  1,  and  9  Geo.  IV.,  is 
not  a  double  plea  ;  for  they  ought  to  be  considered  as  jointly  making 
but  one  law.     Forbes  v.  Sk'^lton,  8  Sim.  335. 

But  a  plea,  which  is  in  effect  a  plea  of  the  statute  of  limitations,  and 
of  no  liability  ever  incurred,  is  a  double  and  inconsistent  plea,  and  bad. 
Emmoil  v.  Mitchell,  9  Jur.  171,  V.  C.  E. 

And  a  plea  averring  that  a  fine  was  levied  of  an  estate  claimed  by 
the  bill,  and  that  such  estate  is  the  only  part  of  the  property  claimed 
in  which  the  defendant  has  any  interest,  will  be  overruled  as  a  double 
plea.     Waikins  v.  Stone,  2  Sim.  49. 

(1)  Goodrich  v.  Pendleton,  3  J.  C.  R.  384. 

(2)  [See  the  case  of  Wilkins  v.  Stone,  2  Sim.  49,  where  a  disclaimer 
was  added  to  a  plea  and  the  plea  overruled.  It  was  looked  upon  as  a 
double  plea. 

It  is  the  pleading  of  a  double  bar  which  constitutes  duplicity.in  a 
plea.  But  a  plea  is  not  rendered  double  by  t!ie  mere  mention  of  aver- 
ments therein  which  are  necessary  to  exclude  conclusions  arising  from 
allegations  in  the  bill  intended  to  anticipate  and  defeat  the  bar  which 
might  be  set  up  by  the  plea.  Chancellor  Walworth,  in  Bogardus  v. 
Rector,  dfC.  of  Trinity  Church,{A.  Paige's  R.  178, 196.)  His  honor  proves 
the  propriety  of  inserting  such  averments,  thus :  "  if  the  defendant 
was  not  bound,  by  averments  in  his  plea,  to  negative  the  allegations 
in  the  bill  inserted  for  the  purpose  of  anticipating  and  displacing  the 
bar,  the  complainant  would  frequently  be  compelled  to  rely  upon  the 
defendant's  oath  alone  for  the  evidence  of  the  truth  of  such  allega- 
tions: and  he  would  have  no  opportunity  to  contradict  that  oath,  un- 
der the  issue  joined  upon  the  plea.  If  that  course  of  pleading  were 
adopted,  the  whole  plea  might  be  true,  although  the  answer  in  sup- 
port of  such  plea  were  absolutely  false  and  could  be  proved  to  be  so, 
if  an  opportunity  were  offered  to  the  complainant  for  that  pur- 
pose."    lb.] 


346  PLEAS.  [Chap.  II. 

[297]  the  plaintiff  claims  may  be  a  good  pl<}a  though  con- 
sisting of  a  great  variety  of  circumstances  (j^)  ;  for 
the  title  is  a  single  point,  to  which  the  cause  is 
reduced  by  the  plea  (q).  It  therefore  seems  that  a 
plea  can  be  allowed  in  part  only  with  respect  to  its 
extent,  the  quantity  of  the  bill  covered  by  it  ;  and 
847  that  if  any  part  of  the  defence  made  by  the  plea  is 

bad,  the  whole  must  be  overruled  (r). 

A  plea  must  aver  facts  to  which  the  plaintiff 
may  reply  (s),  and  not  in  the  nature  of  a  demur- 
rer, rest  on  facts  in  the  bill  (t).  The  averments 
ought  in  general  to  be  positive  (u).  In  some  cases, 
indeed,  a  defendant  has  been  permitted  to  aver  ac- 
cording to  the  best  of  his  knowledge  and  belief; 
as  that  an  account  is  just  and  true  (x)  ;  and  in  all 

[298]  cases  of  negative  averments  (i/),  and  of  averments 
of  facts  not  within  the  immediate  knowledge  of 
the  defendant  (z),  it  may  seem  improper  to  require 

(p)  Martin  and  Martin,  House  of        (s)  15  Ves.  377. 
Lords,    6th    March,    1724-5;     and         (t)  Bicknell  v.  Gough,3  Atk.  558; 

Else   V.  Doughty,  1  P.  Wms.  387,  2  Ves.  296;    Roberts  v.  Hartley,  1 

note,  Mr.  Cox's  Ed. ;  Howe  v.  Duppa,  Bro.  C.  C.  56  ;  6  Ves.  594 ;  Billing 

1  Ves.  &  B.  511 ;  Gait  v.  Osbaldis-  v.  Flight,  1  Madd.  R.  230;  Steff  v. 

ton,  1  Russ.  158  ;  S.C.5  Madd.  428.  Andrews.  2  Madd.  R.  6.     The  pro- 

(7)  See  Doble  v.  Cridland,  2  Bro.  miiient  distinction  between  a  plea  and 

C.  C.  274.  a  demurrer,  (Ord.  in  Ch.  26  Ed.  Bea.) 

(r)  As  instances  of  a  plea  not  be-  here  noticed,  is  strictly  true,  even  of 
ing  a  complete  defence  to  the  bill,  or  that    description  of  plea    which    is 
to  60  much  thereof  as  it  purports  to  termed  negative,  (above,  p.  269,)  for 
cover,  see  Moore  v.  Hart,   1    Vern.  it  is  the  affirmative  of  the  proposition 
110  ;  Salkeldv.  Science,  2  Ves.  107  ;  which  is  stated  in  the  bill. 
Potter  V.  Davy,  3  Vin.    Ab.   135 ;         (m)  3  Atk.  590. 
Hoare  v.  Parker,  above  p.  322,  note  ;         (z)  3  Atk.   70  ;  Burgony  v.  Ma- 
Jones  V.  Davis,  16  Ves.  262  ;  Cham-  chell,  Tothill,  70. 
berlain  v.  Agar,  2  Ves.  &.  B.  259  ;         {y)  See  Drew  v.  Drew,  2  Ves.  &  B. 
Spottiswood  V.  Stockdale,  Coop.  R.  159. 
102  ;  Barker  v.  Ray,  5  Madd.  64.  (2)  2  Vee.  &  B.  162. 


S.  II.  p.  II.]  PLEAS.  347 

a  positive  assertion   (1).      Unless,  however,  the 
averment  is  positive,  the  matter  in  issue  appears  to  348 

be,  not  the  fact  itself,  but  the  defendant's  bcHef  of 
it :  and  the  conscience  of  the  defendant  is  saved 
by  the  nature  of  the  oath  administered  ;  which  is, 
that  so  much  of  the  plea  as  relates  to  his  own  acts 
is  true,  and  that  so  much  as  relates  to  the  acts  of 
others  he  believes  to  be  true.  All  the  facts  neces- 
sary to  render  the  plea  a  complete  equitable  bar  to 
the  case  made  by  the  bill,  so  far  as  the  plea  ex- 
tends, that  the  plaintiff  may  take  issue  upon  it  (a), 
must  be  clearly  and  distinctly  averred  (2).     Aver- 

(a)  Gilb.    For.   Rom.  58;   2  Ves.  296;  and   see  Carleton  v.   Leighton, 
3  Meriv.  667. 


(1)  According  to  the  case  of  Kirkmanv.  Andrew,  a  plea  that  the  piea  of  infoma- 
defendant  is  infortiied  and  believes  that  the  plaintifT  became  bankrupt,  tio"^^"!  belief  of 
is  a  sufficient  plea  of  bankruptcy  ;  inasmuch  as  the  facts  stated  in  an 
answer  upon  the  information  and  belief  of  the  defendant  are  held  to 
be  sufficiently  put  m  issue  ;  and  as  the  allegations  in  a  plea,  if  they 
relate  to  the  acts  of  others,  however  positively  made  in  the  plea 
itself,  are  sworn  to  only  upon  tlie  belief  of  the  defendant.  4  Beav. 
654. 

But  according  to  the  case  of  Small  v.  Atlwood,  a  plea  that  the  de- 
fendant has  been  informed  and  believes  that  the  plainlifF  has  no  inter- 
est in  the  suit  is  bad  ;  because,  in  this  case,  the  onus  piubandi  being 
on  the  defendant,  since  he  undertakes  to  show  that  the  plaintitT  has  no 
interest,  he  must  be  as  capable  of  stating  his  facts  positively  as  of 
proving  them ;  and  if  upon  issue  being  taken  upon  the  plea,  he  were 
to  prove  his  information  and  belief,  that  would  not  be  an  answer  to  the 
bill.     1  Y.  &  C.  Eq.  Ex.  39. 

(2)  In  a  plea  it  is  unnecessary  to  negative  facts  which  would  defeat  Negativing  facu 
the  plea,  if  they  are  not  stated  in  the  bill.     But  if  the  plea  does  con-  "lii.*        "" 
tain  averments  neijiativing    such  facts,  such  averments    are  merely 
superfluous;  they  do  not  vitiate  the  plea.     Forbes  v.  Skelton,  8  Sim. 
326. 

"  Where  a  bill  alleges  a  fact,  and  alleges  other  circumstances  calcu-  pcnini  of  allega- 
lated  and  tending  to   prove  that  fact,  the  defendant  cannot  plead  the  tions  tending  to 

°  *  r  prove  a  fact  de- 

jiegative  of  the  fact,  without  denying  the  statements  and  allegations  in  nicd  by  the  pic*. 


S49 


Answer  as  to 
documents   in 
snpport  of  a  ne- 
f  ative  plea. 


Plea  of  non-pay- 
ment of  pur- 
chase money. 


Plea  of  an  agree- 
ment to  waive 
an  account. 


Plea  not  traTcrs- 
ing  the  material 
fact. 


PLEAS.  [Chap.  II. 

merits  are  likewise  necessary  to  exclude  intend- 

the  bill  which  have  a  tendrncy  to  prove  it."  Denys  v.  Shuckburg,  6 
Law  J.  (N.  S.)  330,  L.  C. 

If  a  defendant  puts  in  a  negative  plea  (such  as  a  plea  of  no  tith- 
able  things  to  a  bill  for  tithes,)  and  there  is  a  charge  in  the  bill  as  to 
documents  from  which  the  plaintiff's  right  to  relief  would  appear,  the 
defendant  must  deny  such  charge  by  an  answer  in  support  of  the 
plea.  Clayton  v.  The  Earl  of  Winchester,  3  Y.  &  C.  Eq.  Ex.  426,  683. 
See  also  note  to  p.  270. 

If  a  defendant  puts  in  a  p^ea  denying  a  partnership  in  a  business, 
and  by  his  answer  admits  that  lie  is  in  possession  of  documents  rela- 
ting to  the  said  biisiness,  but,  "  save  as  aforesaid,"  denies  that  he  has 
any  documents  whereby  the  truth  of  the  alleged  matters  would  appear, 
he  admits  that  the  truth  of  the  contrary  of  the  plea  would  appear  by 
evidence  in  his  possession,  and  this  renders  the  plea  bad,  although  in 
his  answer  he  goes  on  to  insist,  that  inasmuch  as  the  documents  in  his 
possession  relate  exclusively  to  his  own  title,  and  do  not  in  any  way 
tend  to  support  the  plaintiff's  claim,  he  is  not  bound  to  produce  them. 
Harris  v.  Harris,  3  Hare,  450. 

A  plea  to  a  bill  for  discovery  in  aid  of  an  ejectment,  that  the  pur- 
chase money  contracted  to  be  paid  for  the  estate  has  not  been  paid  or 
released,  is  defective  in  not  averring  that  the  money  is  due,  where, 
from  the  circumstances  of  the  case,  it  is  probable  that  it  was  not  the 
intention  of  the  parties  that  it  should  be  paid:  as  where  the  convey- 
ance was  made  by  a  father  to  his  son,  and  although  containing  a  re- 
cital of  an  agreement  for  a  sale  to  the  son,  was  yet  expressed  to 
be  made  in  consideration  of  natural  affection.  Drake  v.  Drake,  3 
Hare,  523. 

If  to  a  bill  for  an  account  of  partnership  transactions,  by  the  ex- 
ecutors of  a  deceased  partner,  the  defendant  pleads  that  for  a  certain 
consideration  a  parol  agreement  was  entered  into  between  the  de- 
ceased partner  and  the  defendant,  that  all  accounts  between  the^Ti,  and 
all  claims  of  the  former  in  respect  of  the  effects  of  the  partnership  and 
the  debts  due  to  and  from  the  same,  should  be  waived  ;  such  agree- 
ment will  be  construed  to  be  an  agreement  that  the  defendant  should 
take  upon  himself  the  discharge  of  such  partnership  liabilities  (if  any) 
as  remained  to  be  satisfied  ;  and  the  plea  will  be  overruled,  if  it  does 
not  aver  that  no  such  liabilities  still  remained  undischarged.  Browny. 
Perkins,  1  Hare,  564. 

Where  a  bill  is  filed  to  establish  a  will  of  real  estate,  of  which  it 
alleges  several  copies  were  executed,  a  plea  that  the  will  proved  in 
the  ecclesiastical  court,  did  not  contain  certain  passages  is  bad,  be- 
cause it  does   not  negative  the  fact  that  the  will  was  as  stated  in  the 


S.  II.  p.  II.]  PLEAS.  849 

ments  (1)  which  would  otherwise  be  made  against 
the  pleader ;  and  the  averments  must  be  sufficient 
to  support  the  plea  (b). 

If  there   is  any  charge  in  the  bill,  which  is  an  350 

equitable  circumstance  in  favor  of  the  plaintiff's 
case  against  the  matter  pleaded  ;  as  fraud,  or  no- 
tice of  tide  ;  that  charge  must  be  denied  by  way  of 
answer,  as  well  as  by  averment  in  the  plea  (c).  In 
this  case  the  answer  must  be  full  and  clear,  or  it 
will  not  be  effectual  to  support  the  plea  (d)  ;  for  the 
court  will  intend  the  matters  so  charged  against  the  rggm 
pleader,  unless  they  are  fully  and  clearly  denied 
(e).     But  if  they  are  in  substance  fully  and  clearly 

(b)  2  Ves.  245:  2  Sch.  &  Lefr.  (d)  3  Atk.  304 ;  Radford  v.  Wil- 
727  ;  18  Ves.  182.  son,  3  Atk.  815  ;  3  P.  Wms.  145  ;  5 

(c)  See  the  judgment  in  Bayley  v.  Bro.  P.  C.  561,  Toml.  Ed. 
Adams,  6  Ves.  594 ;  2  Sch.  &,  Lefr.  (e)  2  Atk.  241  ;  Gilb.  Ca.  in  Eq. 
727;  2  Ves.  &B.  364;  5  Madd.330;  185.     As  an  example,  see  Hony  v. 
6  Madd.  64  ;  2  Sim.  &  Stu.  279  ;  and  Hony,  1  Sim.  &  Stu.  568. 

see  above,  p.  281,  et  seq.,  and  p.  299. 

bill,  but  traverses  the  fact  of  the  copy  proved  in  the  ecclesiastical 
court  being  to  the  effect  stated  in  the  bill,  which  is  quite  immaterial 
in  regard  to  a  question  of  real  estate,  as  the  ecclesiaetical  court  has 
no  jurisdiction  in  cases  of  real  estate.  Strickland  v.  Slrickland,  3 
Beav.  224. 

Where  a  defendant,  in  his  answer  to  a  bill  for  tithes  of  a  mill,  says  pleading exemp- 
that  it  is  an  ancient  mill,  built  before  living  memory ;  that  no  tithes  *'°°  ^''°™  "'i^es. 
have  ever  been  paid  for  it ;  and  that  it  has  been  always  considered  ex- 
empt from  tithes  ;  the  exemption  is  well  pleaded.      Townley  v.  Cole- 
gate,  2  Sim.  297. 

"  A  negative  plea,  as  to  belief,  of  no  mortgage,  not  going  to  material  Negative  plea  u 
collateral    charges  tending  to  that   point,  is  too  loose  and  general."  to  belief. 
Arnold  V.  Ileafield,  1  M'Cleland  &  You.  330. 

(1)  [The  meaning  of  an  intendment  is,  that  allowing  an  averment 
to  be  true,  but  that  at  the  same  time  a  case  may  be  supposed  consist- 
ent with  it,  which  would  render  the  averment  inoperative  as  a  full  de- 
fence, such  case  shall  be  presumed,  unless  specifically  excluded  by 
particular  averment ;  as  where  a  proposition  in  the  disjunctive  is  not 
denied  in  both  its  par's,  or  a  proposition  in  the  conjunctive  affirmed  in 
both  its  parts.    Lube,  343.] 


350  PLEAS.  [Chap.  II. 

denied,  it  may  be  sufficient  to  support  the  plea,  al- 
though all  the  circumstances  charged  in  the  bill 

351  may  not  be  precisely  answered  (/)  (1).  Though 
the  court  upon  argument  of  the  plea,  may  hold 
these  charges  sufficiently  denied  by  the  answer  to 
exclude  intendments  against  the  pleader,  yet  if  the 
plaintiff  thinks  the  answer  to  any  of  them  is  eva- 
sive, he  may  except  to  the  sufficiency  of  the  answer 
in  those  points.  A  defendant  may  also  support  his 
plea  by  an  answer  touching  any  thing  not  charged 
by  the  bill,  as  notice  of  a  tide,  or  fraud  ;  for  by  such 
an  answer  nothing  is  put  in  issue  covered  by  the 
plea  from  being  put  in  issue  (  g),  and  the  answer 
can  only  be  used  to  support  or  disprove  the  plea 
(Ji).  But  if  a  plea  is  coupled  with  an  answer  to 
any  part  of  the  bill  covered  by  the  plea,  and  which 
consequently  the  defendant  by  the  plea  declines  to 
answer,  the  plea  will  upon  argument  be  overruled 

(i)  (2)- 

Where  facts  appeared  upon  an  answer  to  an  ori- 
ginal bill,  which  would  operate  to  avoid  the  de- 

(/)  5  Bro.  P.  C.  561,  Toml.  Ed.  (i)  Cottington  v.  Fletcher,  2  Atk. 

(g-)  Gilb.  For.  Rom.  58,  59.  155;  GKlb.  For,  Rom.  58. 

<A)  See  3  Atk.  303. 

(1)  [The  only  way  of  testing  the  sufficiency  of  an  answer  in  sup- 
port of  a  plea  is,  to  consider  every  allegation  in  the  bill  which  is  not 
sufficiently  denied  by  the  answer  as  true  ;  and  then  to  inquire,  whe- 
ther, these  facts  being  admitted,  the  plea  is  a  sufficient  bar  to  the  claim 
of  the  complainant  for  relief.  Chancellor  Walworth,  in  Bogardus  v. 
Rector,  tf-c.  oj  Trinity  Church,  (4  Paige's  R.  178.)] 

(2)  [Souzer  v.  De  Meyer,  2  Paige's  C.  R.  674  ;  Bogardus  v.  Rector 
iSfC.  of  Trinity  Church,  4  Id.  178.]  Watkins  v.  Stone,  2  S.  &  S.  560. 
By  the  37th  order  of  Aug.  1841,  "  no  plea  shall  be  held  bad  and  over- 
ruled upon  argument,  only  because  the  answer  of  the  defendant  may 
extend  to  scftne  part  of  the  same  matter  as  may  be  covered  by  such  de- 
murrer or  plea." 


S.  II.  p.  II.]  PLEAS.  *  351 

fence  made  by  plea  to  an  amended  bill,  the  answer 
to  the  original  bill  was  read  on  the  argument  of  the 
plea,  to  counterplead  the  plea  (k)  ;  so  it  should 
seem  if  the  answer  to  an  original  bill  would  dis- 
prove an  averment  in  a  plea  to  an  amended  bill, 
the  court  might  permit  it  to  be  read  for  that  pur-  [-300] 
pose  (Z). 

2.  A  plea,  like  a  demurrer,  is  introduced  by  a  352 

protestation  against  the  confession  of  the  truth  of  -  formofpieM. 
any  matter  contained  in  the  bill.  For  the  purpose 
of  determining  the  validity  of  the  plea,  the  bill, 
so  far  as  it  is  not  contradicted  by  the  plea  (m),  is 
taken  for  true  ;  and  the  protestation  has  probably 
been  used  to  prevent  the  same  conclusion  for 
other  purposes.  The  extent  of  the  plea,  that  is, 
whether  it  is  intended  to  cover  the  whole  bill,  or  a 
part  of  it  only,  and  what  part  in  particular,  is  usually 
stated  in  the  next  place  :  and  this,  as  before  obser- 
ved (n),  must  be  clearly  and  distinctly  shown  (1). 

ik)  Hyliard  v.  White,  in  Cha.  15th         (m)  See  Plunlet  v.  Penson,  2  Atk. 

March,  1745.  51  ;   15  Ves.  377. 

(I)  See  the  case  of   Hildyard  v.         (n)  Page  343. 
Cressy,  3  Atk:  303. 


(1)  [In  the  case  of  Leaijcrafl  v.  Dertifsey,  4  Paige's  Ch.  R.  124,  125, 
Cliancellor  VValwortli  has  properly  sliovvn  how  he  will  notice  a  want 
of  form  in  ple'iding.  The  error  had  not  been  found  out  by  the  oppo- 
sing counsel.  An  answer  and  plea  were  put  in.  The  plea  went  upon 
a  stated  account  up  to  a  certain  time,  and  the  answer  took  up  the 
matter  from  such  period.  The  answer  preceded  the  plea;  and  the 
pleading  commenced  by  a  statement  of  its  being,  "  The  answer  and 
■plea  of  J.  D.,  defendant,  to  the  bill  of  complaint,  &c."  It  then  went 
on  wit!)  the  usual  saving  and  reservation  of  errors  ;  and  "  for  answer 
thereto,  or  to  so  much  tiiereof  us  this  defendant  is  advised,  it  is  material 
or  necessary  for  her  to  make  answer  unto,  answering, says,  «S:c."  And 
ended,  witli  a  denial  of  combination,  and  the  general  traverse.  The 
answer  was  limited  as  to  discovery  to  the  extent  intended.     And  in 

29 


352  PLEAS.  [Chap.  II. 

The  matter  relied  upon  as  an  objection  to  the  ju- 

coming  to  the  plea,  the  usual  commencement  occurred.  "  And  as  to 
60  much  and  such  parts  of  the  said  bill  as  seeks  an  account  of  the 
said  one  equal  third  part  of  a  net  moiety  of  the  rents  and  profits  of  the 
said  leasehold  premises  prioc  to  the  first  day  of  February,  one  thousand 
eight  hundred  and  thirty-one,  and  including  the  quarters'  rents  due 
that  day,  this  defendant  for  plea  thereto,  sailh,  &c."  The  folbwing 
is  the  chancellor's  opinion  :  "  The  plea  in  this  case  is  a  sufficient  de- 
fence to  so  much  of  the  bill  as  seeks  an  account  and  satisfaction  of  the 
rents  and  profits  of  the  premises  in  the  bill  mentioned  up  to  and  inclu- 
ding the  1st  of  February,  1831.  But  it  is  defective  in  a  point  of  form, 
as  being  overruled  by  the  answer.  It  is  not  necessary  to  decide  the 
question,  whether  any  of  the  facts  stated  in  the  answer  do,  in  fact, 
cover  the  part  of  the  bill  intended  to  be  covered  by  the  plea.  I  am 
inclined  to  think,  however,  they  do  not.  But,  by  referrinii  to  the  com- 
mencement of  the  answer,  it  will  be  seen,  that  it  purports  to  be  an 
answer  to  the  whole  of  the  bill,  without  excepting  those  parts  to  which 
the  defendant  has  pleaded  in  bar  both  to  the  discovery  and  relief. 
The  defendant  may  plead,  answer  and  demur  to  the  same  bill ;  but 
each  of  these  defences  must  refer  to  and  profess,  in  terms,  to  be  put 
in  as  a  defence  to  separate  and  distinct  parts  of  the  bill.  Thus,  if  an 
answer  commence  as  an  answer  to  the  whole  bill,  it  will  overrule  a 
plea  or  demurrer  to  any  particular  part  of  the  bill,  although  the  defen- 
dant does  not,  in  fact,'  answer  that  part  of  the  bill  which  is  covered  by 
the  plea  or  demurrer.  Lord  RedesJale  says,  if  the  plea  is  to  part  of 
the  bill  only,  and  there  is  an  answer  to  the  rest,  it  is  expressed  to  be 
an  answer  to  so  much  of  the  bill  as  is  not  before  pleaded  to,  and  is 
preceded  by  a  protestation  against  tlie  waiver  of  the  plei.  (Mitf.  PI.  4 
Lond.  ed.  300.)  In  practice,  the  plea  or  demurrer  usually  precedes 
the  answer,  which  in  that  case  commences  thus  :  '  And  as  to  the  re- 
sidue of  the  said  bill,  this  defendant,  not  waving  his  said  plea  but  re- 
lying thereon,  and  saving  and  reserving  to  himself,  &c.,  for  answer 
theretOjOr  to  so  much  thereof  as  he  is  advised  is  material,  &c.'  Lube's 
Eq.  PI.  352.  I  see  no  objection,  except  as  to  the  convenience,  of  re- 
ference, in  permitting  the  answer  to  precede  the  plea,  as  has  been 
done  in  the  presfent  case,  but  then  the  pleader  must,  hy  a  reference  to 
the  part  of  the  bill,  which  is  subsequently  covered  by  the  plea,  or 
otherwise  show  that  it  is  an  answer,  to  the  residue  of  the  bill  only. 
As  the  answer  in  this  case  commences  and-concludes  as  an  answer 
to  the  whole  bill,  in  the  same  manner  as  if  it  was  not  intended  to  be 
followed  by  a  plea  as  to  part,  in  point  of  form  the  plea  is  overruled  by 
the  answer,  and  cannot,  therefore,  be  allowed. 

As  this  plea,  however,  is  a  full  defence  to'  so  much  of  the  bill  as  it 


S.  II.  p.  II.]  PLEAS.  *  352 

risdiction  of  the  court,  to  the  person  of  the  plaintiff 
or  defendant,  or  in  bar  of  the  suit,  generally  fol- 
lows, accompanied  by  such  averments  as  are  ne- 
cessary to  support  it.  The  plea  commonly  con- 
cludes with  a  repetition  that  the  matters  so  offered 
are  relied  upon  as  an  objection  or  bar  to  the  suit, 
or  so  much  of  it  as  the  plea  extends  to  ;  and  prays 
the  judgment  of  the  court,  whether  the  defendant 
ought  to  be  compelled  further  to  answer  the  bill,  or 
such  part  as  is  thus  pleaded  to.  If  the  plea  is  ac- 
companied by  an  answer  merely  to  support  it,  the 
answer  is  stated  to  be  made  for  that  purpose,  not 
waiving  the  plea.  If  the  plea  is  to  part  of  a  bill 
only,  and  there  is  an  answer  to  the  rest,  it  is  ex- 
pressed to  be  an  answer  to  so  much  of  the  bill  as  [301] 
is  not  before  pleaded  to,  and  is  preceded  by  the 
same  protestation  against  waiver  of  the  plea. 

3.  A  plea  (o)  is  filed  hke  a  demurrer  in  the  pro-  pu^^T^^^""* 

(o)  A  plea  must  be  signed  by  couu-     below,  p.  376,  as  to  the  taking  of  an 
sel,  unless  taken  by  commissioners,     answer. 
Simes  v.  Smitfi,  4  Madd,  366.     See 


professes  to  cover  and  is  merely  informal,  m  consequence  of  the  In- 
advertence of  tlie  solicitor  in  not  excepting  that  part  of  the  bill  in  the 
commencement  of  his  answer,  it  would  be  a  matter  almost  of  coiyse  to 
permit  him  to  amend  on  payment  of  costs.  As  the  cause  must  go  to 
a  hearing  upon  tlie  other  part  of  the  bill,  it  will  be  equally  beneficial 
to  the  defendant  if'I  permit  the  plea  to  s^tand  for  an  answer.  1  shall, 
therefore,  direct  it  to  stand  fur  an  answer,  declaring  it  as  a  goid  de- 
fence if  established  by  proof,  to  s^o  much  of  the  bill  as  seeks  for  an  ac- 
count and  satisfaction  of  the  roiits  and  profits  up  to  and  incUiding  the 
1st  February,  1831  ;  and  that  the  complainant  is  not,  by  exceptions, 
to  be  permitted  to  .call  for  an  account  for  those  rents  and  profits,  or 
any  furtlier  answer  as  to  that  part  of  tlie  bill.  Thig,  however,  will  not 
preclude  the  comp'ainant  from  excepting  to  the  answer  to  the  other 
jparts  of  the  bill,  if  it  is  insufficient.  {Coke  v.  Wilcox,  Mos.  Rep.  74.) 
And  the  defendant  must  pay  the  costs  of  the  argument  of  the  plea."] 


on  them 


353  PLEAS.  [Chap.  II. 

per  office  ;  and  pleas  in  bar  of  matters  in  pais  (o), 
must  be  upon  oath  of  the  defendant ;  but  pleas  to 
the  jurisdiction  of  the  court,  or  in  disabihty  of  the 
person  of  the  plaintiff  (^),  or  pleas  in  bar  of  any 
matter  of  record,  or  of  matters  recorded,  or  as  of 
record  in  the  court  itself  (q),  or  any  other  court  (r), 
need  not  be  upon  oath  (1). 
4-^Pr^ceeding8  4.  If  fj^Q  plaintiff  conceivcs  a  plea  to  he  defective 
in  point  of  form  or  substance,  he  may  take  the 
judgment  of  the  court  upon  its  sufficiency.  And 
if  the  defendant  is  anxious  to  have  the  point  de- 
termined, he  may  also  take  the  same  proceeding  (2). 
Upon  argument  of  a  plea  it  may  either  be  allowed 
simply,  or  the  benefit  of  it  may  be  saved  to  the 
hearing,  or  it  may  be  ordered  to  stand  for  an  an- 
swer. In  the  first  case  the  plea  is  determined  to 
be  a  full  bar  to  so  much  of  the  bill  as  it  covers,  if 
the  matter  pleaded,  with  the  averments  necessary 
to  support  it,  be  true.     If,  therefore,  a  plea  is  al- 

(o)  Prac.  Reg.  325,  Wy.  Ed.  corded  be    accompanied  with    aver- 

(p)  Ord.  Ch.  27,  172,  Ed.  Bea.  meiits  of  matters  in  pais,  it  must  be 

(9)  Prac.  Reg.  324,  Wy.  Ed.  upon  oath.     Wall  v.  Stubbs,  2  Ves. 

(r)  But  if  a  plea  of  matters  re-  &  Bea.  354 ;  see  above,  pp.  265-268. 

(J.)  [Carroll  v.  Waring.,  3  Gill.  &l  Johns.  491.  Leave  to  withdraw 
a  plea  will  not  be  given.  Kirby  v.  Taylor,  6  J.  C.  R.  242.  There 
can  be  no  demurrer  to  a  plea.,  If  supposed  insulBcient,  it  may  be  set 
down  for  argument.  Thomas's  Trustees  v.  Brashea.  4  Monroe's  R. 
67.] 

(2)  [See  above.  By  the  practice  of  the  State  of  New  York,  the 
complainant  has  ten  days  to  file  a  replication  to  the  plea  or  to  amend 
his  bill;  and  if  he  does  not  take  issue  on  the  plea  or  amend  his  bill 
within  that  time,  either  party  may  notice  the  plea  for  argument  at  the 
next  or  any  subsequent  term.  If  the  plea  is  allowed,  the  complainant 
may,  within  ten  days  after  notice  of  such  allowance,  take  issue  on  the 
plea  upon  payment  of  the  hearing  therein.  47th  Rule.  As  to  a  de- 
fendant pleading  matter  of  record,  see  48th  Rule.] 


S.  II.  p.  II.]  PLEAS.  353 

lowed  upon  argument,  or  the  plaintiff  without  a;r- 
gument  thinks  it,  though  good  in  form  and  sub- 
stance, not  true  in  point  of  fact,  he  may  take  issue 
upon  it,  and  proceed  to  disprove  the  facts  upon  [302] 
which  it  is  endeavoured  to  be  supported  (s).  For 
if  the  plea  is  upon  argument  held  to  be  good,  or 
the  plaintiff  admits  it  to  be  so  by  replying  to  it  (t), 
the  truth  of  the  plea  is  the  only  subject  of  question  354 

remaining,  so  far  as  the  plea  extends  ;  and  nothing 
but  the  matters  contained  in  the  plea,  as  to  so  much 
of  the  bill  as  the  plea  covers,  is  in  issue  between 
the  parties  (ti).  If  therefore  issue  is  thus  taken 
upon  the  plea,  the  defendant  must  prove  the  facts 
it  suggests  (x).  If  he  fails  in  this  proof,  so  that,  at 
the  hearing  of  the  cause,  the  plea  is  held  to  be  no 
bar,  and  the  plea  extends  to  discovery  sought  by 
the  bill,  the  plaintiff  is  not  to  lose  the  benefit  of  that 
discovery,  but  the  court  will  order  the  defendant  to 
be  examined  on  interrogatories,  to  supply  the  de- 
fect (?/).     But  if  the  defendant  proves  the  truth  of 

(s)  Prac.  Reg.  330,  Wy.  Ed.  (1).  (x)  Mos.  73  ;  2  Ves.  24;  ;  Ord  v.  - 

(0  1  Vera.  72,  Prec.  iu  Ch.  58  (2).  Huddleston,  Dick,  510. 

(u)  3   P.   Wms.    95;    Parker    v.         (y)    Nels.     Rep.    119;    Astley   v. 

Blythmore,  Prec.  iu  Chan.  58.     See  Fountaine,  Rep.  Tem.  Finch,  4;  2 

Cooper  V.    Tragonnel,  1   Ch.    Rep.  Ves.  247 ;  6  Madd.  63  ;  2   Sim.   & 

174  (3).  Stu.  278  (4). 

(1)  [i^ee  47th  Rule  of  N.  Y.  Chancery.  In  Bogardus  v.  Hector, 
<^c.  of  Trinity  Church,  4  Paige's  R.  178,  Chancellor  Walworth  al- 
lowed a  plei,  and  ordered  the  bill  to  be  dismissed  with  costs:  unless, 
within  twenty  days,  the  complainant  should  pay  the  costs  of  the  argu- 
ment of  the  plea  and  file  a  replication  to  the  answer. 

(2)  [Hughes  V.  Blake,  6  Wheat.  472  ;  Doivs  v.  M'Michael,  2  Paige's 
C.  R.345.] 

(3)  [The  issue,  as  to  the  truth  of  the  plea,  is  to  be  referred  to  tl.e 
state  of  the  facts  at  the  time  of  filing  the  pica.  Cook  v.  Mancius,  4 
J.  C.  R.  166.] 

(4)  [Snuzerv.  De  Meyer,  2  Paige's  C.  R.  574.     A  plea  which  sets 


854  PLEAS.  [Chap.  II. 

the  matter  pleaded,  the  suit,  so  far  as  the  plea  ex- 
tends, is  barred  (z),  even  though  the  plea  is  not  good 
either  in  point  of  form  or  substance.  Therefore, 
where  a  defendant  pleaded  a  purchase  for  a  valu- 
able consideration,  and  omitted  to  deny  notice  of 
the  plaintiff's  title,  and  the  plaintiff  ^'replied,  it  was 
[303]  determined  that  the  plea,  though  irregular,  had 
been  admitted  by  the  replication  to  be  §ood,  and 
that  the  fact  of  notice  not  being  in  issue,  the  de- 
fendant, proving  what  he  had  pleaded,  was  enti- 
tled to  have  the  bill  dismissed  (a). 

If  upon  argument  the  benefit  of  a  plea  is  sav^d 
to  the  hearing,  it  is  considered  that. so  far  as  ap- 
pears to  the  court  it  may  be  a  defence  ;  but  that 
there  may  be  matter  disclosed  in  evidence  which 
355  would  avoid  it  supposing  the  matter  pleaded  to  be 

strictly  true  ;  and  the  court  therefore  will  not  pre- 
clude the  question  (2). 

When  a  plea  is  ordered  to  stand  for  an  answer, 
it  is  merely  determined  that  it  contains  matter  which 
may  be  a  defence,  or  part  of  a  defence  ;  but  that 
it  is  not>a  full  defence,  or  it  has  been  informally  of- 
fered by  way  of  plea,  or  it  has  not  been  properly 
supported  by  answer,  so  that  the  truth  of  it  is  doubt- 
ful. For  if  a  plea  requires  an  answer  to  support  it, 
upon  argument  of  the  plea  the  answer  ma'y  be  read 

(z)  See  WicAaZse  V.  iSAor^,  3  Bro.  (a)  HanisY.Ingledew,^Y.Wtas. 
P.  C.  558  (1).  94,  95. 

up  no  valid  defence  to  any  part  of  tlie  matter  it  professes  to  cover, 
should  be  overruled  absolutely,  and  will  not  be  permitted  to  stand  for 
an  answer.     Orcutl  v.  Orms,  3  ib.  459.] 

(1)  [Hughes  V.  Blake,  supra;  Dowsv.  JSV Michael  swpra.'] 

(2)  [By  the  practice  of  the  State  of  New  York,  there  cannot  be  a 
plea  after  one  has  been  overruled.  49th  Rule ;  and  see  Rowley  v. 
Eccles,  1  Sim.  &  S.  611.] 


[304] 


S.  II.  P.  II.]  PLEAS.  355 

to  countcrprove  the  plea  ;  and  if  the  defendant  ap- 
pears not  to  have  sufficiently  supported  his  plea  by 
his  answer  the  plea  must  be  overruled,  or  ordered  to 
stand  for  an  answer  only  (b).  A  plea  is  usually 
ordered  to  stand  for  an  answer,  where  it  states 
matter  which  may  be  a  defence  to  the  bill,  though 
perhaps  not  proper  for  a  plea,  or  informally  plead- 
ed (c).  .But  if  a  plea  states  nothing  which  can  be 
a  defence  it  is  merely  overruled  (3).  If  a  plea  is 
ordered  to  stand  for  an  answer,  it  is  allowed  to  be 
a  sufficient  answer  to  so  much  of  the  bill  as  it  cov- 
ers (d),  unless  by  the  order  Jiberty  is  given  to  ex- 
cept (e).  But  that  liberty  may  be  qualified,  so  as 
to  protect  the  defendant  from  any  particular  discov- 
ery which  he  ought  not  to  be  compelled  to  make  (/). 

(6)  See  Hildi/ardv.  Cressy,  3  Alk.  (e)  Sellon  v.  Lewen,  3  P.  Wms. 

304  (1).  239 ;    Maitland  v..  Wilson,  3   Atk. 

(c)  As   examples,    see    Moore    v.  814.      Sco   Dryden  v.  Robinson,  2 

Hartal  Vern.  110;  S.  C.  ibid.  201 ;  Sim.  &  Stu.  .529  (4). 

Kemp  V.  Kelsey,  I'rec.  \n  Cha.  544;  (/)    See    Alardes    v.    Campbell, 

S<ilkeld    V.    Science,  2   Ves.    107  ;  Bunb.  265 ;  S.  C.  1  Turn.  R.   133, 

WUithread  v.  Brockhurst,  1   Bio.  C.  note  ;    Herbert  v.   Montagu,    Finch. 

C.  404;  (2)  S.  C.  2  Ves.  &  B.  153,  R.  117;  Brereion  v.  Gamut,  2  Atk. 

note;   Wkitcharch  v.  Beois,  2  Bro.  240;     Pusey    v.    Desbnuvric,    3  P. 

C.  C.  559;   Wood  v.  Strickland,  2  Wms.    315;    King  v.   Holcombe,  4 

Ves.  &  B.  150.  Bro.  C.  C.  439;  Bayley  v.  Adams, 

{d)  Coke  V.  Wilcocks,   Mos.  73  ;  6  Ves.  586. 
3  P.  Wms.  240 ;  3  Atk.  815. 

(l;   [Also  Kirbyv.  Taylor,  6  J.  C.  R.  242.] 

(2)  yOrcuU  V.  Orms,  3  Paige's  C.  R.  459.  And  see  Souz-r  v.  De 
Meyer,  2  Paige's  C.  R.  574.  Where  a  plea  has  been  overruled  on  the 
meritS;  the  same  matter  cannot  be  set  up  in  the  answer  as  a  bar  to 
the  suit,  without  the  special  permission  of  the  court.  Townsend  v. 
Tuwnsend,  3  lb.  413.J 

(3)  [Orcull  V.  Orms,  3  Paige's  C.  R.  459.] 

(4)  [Kirhy  v.  Taylor,  6  J.  C.  R.  242  ;  OrcuU  v.  Orms,  snpra.  In 
this"  case  {OrcuH  v.  Orms,)  Chancellor  Walworth  has  said,  that  the 
answer  will  be  considered  as  a  full  answer,  though  not  necessarily  a 
perfect  defence.] 


356  PLEAS.  [Chap.  II. 

And  if  a  plea  is  accompanied  by  an  answer,  and 
is  ordered  to  stand  for  an  answer,  without  liberty 
to  except,  the  plaintiff  may  yet  except  to  the  answer, 
as  insufficient  to  the  parts  of  the  bill  not  covered 
by  the  plea  (/).  If  a  plea  accompanied  by  an  an- 
swer is  allowed,  the  answer  maybe  read' at  the 
hearing  of  the  cause  tocounterprove  the  plea  («•)  (1). 
There  are  some  pleas  which  are  pleaded  with 
such  circumstances  that  their  truth  cannot  be  dis- 
puted ;  and  others  being  pleas  of  matter  of  fact,  the 
truth  of  which  may  be  immediately  ascertained  by 
[S05]  mere  inquiry,  it  is  usually  referred  to  one  of  the 
masters  of  the  court  to  make  the  inquiry.  These 
pleas,  therefore,  are  not  usually  argued  (h).  Thus 
pleas  of  outlawry  or  excommunication  (3),  being 
always  pleaded  sub  sigillo,  the  truth  of  the  fact 
pleaded  is  ascertained  by  the  form  of  pleading,  and 
the  suit  is  consequently  delayed  until  the  disability 
shall  be  removed,  unless  the  plaintiff  can  show  that 
the  plea  is  defective  in  form,  or  that  it  does  not  ap- 
ply to  the  particular  case,  and  for  these  purposes  he 
may. have  the   plea  argued.     Pleas  of  a  former 

357  decree  (i),  or  of  another  suit  depending  (k),  are 

(/)  Cock  V.  Wilcocks,  Mos.  73.  been  allowed,  Taylor  v.  Shaw,  2 
(g-)  3  Atk.  304.     But  the  plaintiff    Sim.  &  Stu.  12.  (2) 

may  not  amend  his  bill  as  of  course         (h)  Ord.  in  Ch.  17.5,  Ed.  Bea. 

after  a  plea  to  part  of  the  bill  has         (i)  Morgan  v.  Morgan,  1  Atk.  53. 

{k)  Ord.  in  Ch.  98,  ed.  1739. 

(1)  [After  a  plea  has  been  overruled,  the  same  defence  may  be  in- 
sisted on  by  way  of  answer.  Goodrich  v.  Pendleton,  4  J.  C.  R.  549. 
But  this  is  not  so,  upon  a  plea  of  the  statute  of  limitations.  Carter 
\.  Murray,lJ.  C.  R.   167.] 

(2)  [If  a  plea  be  overruled,  the  complainant  may,  within  ten  days 
thereafter,  amend  his  hill  of  course  and  without  costs.  45ih  Rule  of 
N.  Y.  Chancery.] 

(3)  This  disability  is  removed  by  the  stat.  53  Geo.  IK.  c.  127,  J  3. 


S.  II.  r.  III.]  ANSWERS.  357 

generally  referred  to  a  master  to  inquire  into  the 
fact ;  and  if  the  master  reports  the  fact  true,  the  bill 
stands  instantly  dismissed,  unless  the  court  other- 
wise orders  (Z).  But  the  plaintiff  may  except  to 
the  master's  report  and  bring  on  the  matter  to  be 
argued  before  the  court  (m)  ;  and  if  he  conceives 
the  plea  to  be  defective,  in  point  of  form  or  otlier- 
wise,  independent  of  the  mere  truth  of  the  fact 
pleaded,  he  may  set  down  the  plea  to  be  argued 
as  in  the  case  of  pleas  in  general  (n). 


CHAPTER  II. 
Section  II. — Part  III. 


Of  Answers  and  Disclaimers ;  and  of  Demurrers,     xP^^l 
Pleas,  Answers,   and  Disclaimers,  or  any  two 
or  more  of  them,  jointly. 

If  a  plea  is  overruled,  the  defendant  may  insist 
on  the  same  matter  by  way  of  answer  (a).  And 
whatever  part  of  the  bill  is  not  covered  by  demur- 

(l)  See  Crofts  v.  Worthy,  1  Ca.  See  Urlin  v.  - — ,  1  Vern.  332 ;  and 

in  Ch.241.     See  above,  pp.  278,  288.  Foster  v.  Vassall,  3  Atk.  587. 

{m)  Durrandv.  Hutchinson,  Mich.  (a)  2Ves.  492;  Earl  of  Suffolk  v. 

1771,  on  Exceptions.  Green,  1  Atk.  450  ;  1  Cox,  R.  228  (1). 

(«)  Old.    in    Ch.    176,  Ed.    Bea. 

(1)  [S.P.  Goodrich  \.  Pendleton,  4  J.  C.  R.  549.  But  see  Carter 
V.  Murray,  7  ib.  167  ;  and  particularly  the  observations  of  Suther- 
land, J.,  in  (S.  C.)  Murray  v.  Custer,  4  Cow.  620.  It  is  said,  in 
Townsend  v.  Townsend,  2  Paige's  C.  R.  413,  that  svhcre  a  plea  has 
been  overruled  on  the  merits,  t^iasame  matter  cannot  be  set  up  in  the 
answer  as  a  bar  to  the  suit,  witiiout  the  special  permission  of  the 
court.] 

If  the  defendant  has  a  eubstantial  defence  wliich  cannot  avail  iiim 
under  his  plea,  from  inaccuracy  in  pleading,  he  may  claim  the  full 
benefit  of  such  defence  by  his  answer.     1  Green's  Ch.  R.  338. 


357  ANSWERS.  [Chap.  II. 

rer  or  plea,  must  be  defended  by  answer  (b),  un- 
less the  defendant  disclaims  (1).     In  treating  of 

358  answers  and  disclaimers  will  be  considered — 1. 
The  general  nature  of  answers  ;  2.  Their  form  ;  3. 
The  manner  in  which  their  sufficiency  is  decided 
upon,  and  deficiency  supplied  ;  and  4.  The  nature 
and  form  of  disclaimers. 

Sverin*/w"ti8  !•  It  hjas  been  already  (c)  mentioned,  that  eveiy 
™*^""  plaintiff  is  entitled  to  a  discovery  from  the  defend- 

ant of  the  matters  charged  in  the  bill  (d)  (2),  pro- 
[307]     vided  they  are  necessary  to  ascertain  facts  mate- 
rial to  the  merits  of  his  case,  and  to  enable  him  to 
obtain  a  decree  (3).     The  plaintiff  may  require  this 

(b)  Prac.  Reg.  Wy.  Ed.  they  should  have  but  one  common 

(c)  Page  9.  defence.     Van  Saudau  v.  Moore,  1 

(d)  Where  the  defendants  are  nu-  Russ.  R.  441,  on  appeal.  See  S.G.2 
merous,  each,  it  seems,  is  entitled  to  Sim.  &  Stu.  509.  [But  see  1  Head- 
put  in  a  separate  answer,  although  lam's  Dan.  C  P.  695.] 

(1)  See  note  to  p.  380. 

(2)  See  note  to  p.  52, 

An^^^erofasole  The  17th,  18th,  and  19th  orders  of  August  1841,  do  not  apply  to 
the  case  of  a  sole  defendant.  Lynch  v.  Lecesne,  12  Law  J.  (N.'S.) 
127,  V.  C.  W, 

Necessity  of  put-  If  a  bill  requires  a  defendant  to  answer,  but  he  is  not  required  to 
swer,'tho°i^hnot  a^swer  any  of  the  interrogatories  by  a  note  at  the  foot  of  the  bill ;  in 
required  to  an-  gugh  case  he  need  not  answer  any  of  the  interrogatories,  but  he  must 

8wer  any  inter-  j  o  ' 

rogatory.  put  in  some  answer:  for  he  is  only  exempted  from  giving  a  discovery 

of  facts,  and  not  from  stating  his  line  of  defence.  Wilson  v.  Jones ^ 
7  Jur.  1102,  V.  C.  E. 

(3)  See  Jansonw.  Solarte,  2  Y.  &  C.  Ex.  132. 

Answer  as  to  ir-  The  rule  that  where  a  defendant  submits  to  answer,  he  must  answer 
relevant  matter.   ^  ,,       ,  ,     .  ,  ,  ,.  ,    r      .  i- 

fully,  does  not  apply  in  such  a  way  as  to  oblige  a  deiendant  to  discover 
that  which  would  be  altogether  immaterial  to  the  relief  sought  by  the 
bill.  (  Wood  V.  Hitchings,  3  Beav.  504  ;  Codrington  v.  Codringfon,  3 
Sim.  519.)  For  he  need  not  answer  &.t  all  as  to  such  irrelevant  mat- 
ter;  or,  if  it  is  desirable  for  his  own  interest,  he  may  answer  only  as 
to  a  part  of  it.      Wood  v.  Hitchings,  3  Beav.  504. 

Where  an  information,  after  alleging  a  misapplication  of  certain 


S.  II.  p.  III.]  ANSWERS.  359 

discovery,  either  because  he  cannot  prove  the  facts, 
or  in  aid  of  proof,  and  to  avoid  expense  (e).  He 
is  also  entitled  to  a  discovery  of  matters  necessairy 
to  substantiate  the  proceedings,  and  make  them  re- 
gular and  effectual  in  a  court  of  equity  (/).  How- 
ever, if  the  discovery  sought  by  a  bill  is  matter  of 
scandal  (1),  or  will  subject  the  defendant  to  any 
pain,  penalty,  or  forfeiture  (2),  he  is  not  bound  to 

(e)  2  Alk.  241.  (/)  2  Yes,  492;  G  Ves.  37,    38, 

Coop.  6.214. 

funds  vested  in  the  defendants  upon  certain  trusts,  alleges  that  there 
are  certain  other  funds  vested  in  lije  de'endant<  upon  the  like  trusts, 
but  it  does  not  charge  any  misapplication  of  such  other  funds,  or  any 
thing  whirh  can  show  that  the  interference  of  the  court  is  necessary 
with  respect  to  them,  the  allegation  as  to  the  last-mentioned  funds  is 
irrelevant,  and  therefore  need  not  to  be  answered.  Allorneij  Gen.  v. 
Merchant  Tailor's  Company,  5  Sim.  328. 

(1)  Where  new  matter  which  occurred" subsequently  to  the  filing  da™u7'^atter*" 
of  an  original  bill  is  improperly  introduced  by  amendment,  instead  of  by  originally  inta-o- 
1  1  ,    11  '        1     1  •  11-  .  duced  byamend- 

asupp'enieiitAl  bill,  and  that  matter  contains  ?candalou.-  imputations  on  ment. 

the  character  of  the  defendant,  the  defendant  may  answer  that  matter 

in  order  to  clear  his  charac'er,  without  preventing  the  bill  from  being 

dismissed  with  costs  on  the  ground  of  the  irregularity  of  introducing 

the  new  matter  by  amendment.     Wray  v.  Hukhinso?i,  2  M.  &,  K. 

235. 

(2).  A  defendant  is  not  only  not  bound  to  answer  any  question       Exemption 

which  has  a  direct  tendency  to  criminate  iiim,  but  he  is  not  bound  to  q'il'c^tions^tend- 

answer  any  question   the  answer  to   which  may  form  a  link  in  the  o°Ao°ex"ose"?he 

chain  of  evidence.     Souihall  v. ,  2  Coll.  Ex.  Eq.  308.  defendant  to  a 

.,„,.,,.,  i-i,-  forfeiture. 

A  defendant  is  not  obliged  to  answer  so  as  to  expose  himself  to  a 

forfeiture.  So  that  an  heir  at  law  is  not  obliged  to  answer  interroga- 
tories as  to  the  testator's  sanity,  where  there  is  a  clause  in  the  will  re- 
voking an  annuity  in  the  event  of  tiie  heir  disputing  his  will  or  his  com- 
petency to  make  it.  And  he  may  avail  iiimself  of  this  exemption  al- 
though he  answers  in  part,  and  in  so  doing  he  may  have  made  admis- 
sions which  subject  him  to  the  operation  of  the  revocation  clause. 
Cooke  V.  Turner,  14  Sim.  218. 

And  so  a  husband  who  obtained  his  inarria;:e  license  by  falsely 
swearing  that  the  4)arent's  consent  to  the  marriage  was  given,  nviy  by 
answer  decline  answering  questions  relating  to  the    minority   of  the 


360  ANSWERS,  [ClIAP.  II. 

make  it  (g)  ;  and  if  he  does  not  think  proper  to  de- 
fend himself  from  the  discovery  by  demurrer  or  plea, 
according  to  the  circumstances  of  the  case,  he  has 
been  permitted  by  answer  to  insist  that  he  is  not 
obliged  to  make  the  discovery  {h).     In  this  case 

(g)  15  Ves.  378  ;  and  see  authori-  2  Ves.  Jun.  454 ;  S.  C.  4  Bro.  C.  C. 

ties  cited  above,  p.  228  (1).  322 ;  15  Ves.  378  ;  1  Ball  &  B.  325 ; 

(A)  3  P.    Wms.    238 ;     Finch  v.  and  see  Lord  Radcliffe  v.  Parkyns, 

Finch,  2  Ves.  491;  Honeywood  v.  6  Dow  P.  C.  230;  but  see   Ovey  v. 

Selwin,  3  Atk.    276;     Paxton    v.  Leighton,    2    Sim.     &     Stu.    234). 

Douglas,  19  Ves.  225  ;  Parkhurst  v.  It  seems  that  in  every  other  ease, 

Lowten,  1   Meriv.  391;    1    Svvanst.  even  in  that  of  a  mere  witness  being 

192,  305  (2).     It  has  also  been  held,  made  a  defendant  (see    Cookson  v. 

that  a  purchaser  for  a  valuable  con-  Ellison,  2   Bro.   C.  C.   252:    Cart- 

sideration,  without   notice,  may   by  wright  v.  Hately,  3  Bro.  C.  C.  238  ; 

answer  protect  himself  from  making  Shepherd  v.  Roberts,  3   Bro.  C.  C. 

discovery  of  facts  which  might  defeat  239;  7  Ves.  288;  11  Ves.  42;    but 

his  enjoyment.    {Jerrard  v.  Sanders,  see  Newman  v.  Godfrey,  2  Bro.  C.  C 


lady,  and  the  non-consent  of  her  parent,  in  an  information  under  the 
Marriage  Act,  4  Geo.  IV.  c.  76,  s.  23,  praying  for  a  declaration  that 
he  has  forfeited  his  interest  in  his  wife's  property  :  for  such  a  case  is 
within  the  general  rule  as  to  forfeiture.  Attorney  Gen.  v.  Lucas,  2 
Hare,  666. 

But  a  party  cannot  protect  himself  from  discovering  whether  the  con- 
sideration of  a  security  on  which  he  has  brought  an  action  against 
the  plaintiff  in  equity  was  money  lent  at  play,  although  the  stat.  9 
Anne,  c.  14,  s.  1,  makes  securities  for  money  so  lent  void  ;  for  such  a 
discovery  does  not  subject  the  defendant  in  equity  to  a  penalty  or  for- 
feiture, but  merely  prevents  him  from  succeeding  in  his  action.     Slo- 

man  v.  K'dley,  4  Y.  &  C,  Eq.  Ex.  169. 
Answer  to  inter-  ^  ^ 

rogatories  in  Where  the  interrogatories  of  a  bill  relate  to  matters  as  to  which 

towliich  the  de-  'he  plaintiffis  entitled  to  a  discovery,  and  also  to  other  matters  an  ad- 
owfeed  to  "an-  ^'.ss'on  of  wHich  would  subject  the  defendant  to  an  indictment  or  pen- 
ewer  are  mixed  alties,  and  which  do  not  form  the  foundation  of  any  part  of  the  relief 
up  with  others.         ,  .   ,     .  i         ,  ^  ,  •  .,.,,. 

which  is  prayed,  and  the  two  subjects  are  so  mixed  in  the  interroga- 
tories that  the  defendant  cannot  separate  thoin  in  his  answer,  the  plain- 
tiff cannot  insist  upon  an  answer  to  any  part  of  the  interrogatories, 
Earl  of  Lichfield  v.  Bond,  12  Law  J.  (N.  S.)  329,  M.  R. 

(1)  [And  also  page  195,  ante;  Liiingston  v.  Harris,  3  Paige's  C. 
R.  628. 

(2)  [And  see  Cnlyer  v.  Bogert,  3  Paige's  C.  R.  186.] 


S.  II.  p.  III.]  ANSWERS.  361 

the  plaintiff  may  except  to  the  defendant's  answer     [308] 

332),  unless  perhaps  he  be  a  profes-  to  answer  all  the  facts  stated  in  the 
sional  person,  and  the  discovery  he  bill,  from  which  he  does  not  distinctly 
sought  of  matters  confidentially  com-  protect  himself  from  answering  by 
municated  to  him  (1).  Stratford  v.  either  of  the  other  modes  of  defence 
Hogan,2  Ball  &  B.  164;  if  a  person  "  (2).  See  Doliler  v.  Lord  Hunting- 
answers  at  ali,  he  may  be  required    field,  11  Ves.  283,  in  which  the  ear- 

(1)  As  the  cases  respecting  privileged  communications  and  docu- 
ments, and  respecting  matters  relating  to  the  defendant's  title,  which 
have  been  specially  noticed  by  Lord  Redesdale,  and  those  upon  the 
same  subject  which  have  been  adjudged  during  the  period  to  which 
the  editor's  labors  are  confined,  embrace  only  a  portion  of  that  subject; 
and  as  that  subject  is  of  considerable  extent,  and  involved  in  much 
controversy  and  difficulty,  and  comprises  many  cases  which  are  more 
properly  practice  cases  than  cases  on  pleading,  the  editor  deems  it 
advisable  to  refer  the  reader  to  the  learned  works  on  Discovery  by  Sir 
James  VVigram  and  Mr.  Hare,  and  to  Mr.  Daniell's  valuable  Treatise 
on  Chancery  Practice,  in  which  (as  the  editor  believes)  a  complete 
view  of  the  points  referred  to  in  this  note  may  be  obta  ned.  A  state- 
ment of  some  decisions  only  might  tend  to  mislead.  Of  the  cases  on 
privileged  communications  and  documents,  within  the  last  twenty 
years,  the  following  may,  however,  be  named:  Flight  v.  Rvbinson,  8 
Beav.  22  ;  Holmes  v.  Baddeley,  6  Beav.  521  ;  Steele  v.  Stewart,  13  Sim. 
633,  and  1  Phil.  471  ;  Mayor  and  Corporation  of  Dartmouth  v.  Holds- 
worth,  10  Sim.  476;  Garland  \.  Scott,  3  Sim.  396;  Mad  nv.  Veeiers,  7 
Beav.  489 ;  Hughes  v.  Garnons,  6  Beav.  352  ;  Desborough  v.  Raiolins, 
3My.  &  C.  515;  Greauleafv.  King,  1  Beav.  137;  Woodsv.  Woods,4. 
Hare,  83  ;  Preston  v.  Carr,  1  Y.  &  J. ;  Greenough  v.  Gaskell,  1  M.  & 
K.  100;  Earl  of  Glengall  v.  Frazer,  2  Hare,  99,  105;  Alt.  Gen.  v. 
Lucas,  2  Hare,  566;  ClngeU  v.  Phillips,  2  Y.  &  C.  Ch.  C.  82;  Her- 
ring V.  Cloberry,  1  Phil.  91,93;  Lord  Walsim^ham  v.  Goodriche,  3 
Hare,  122  ;  Bolton  v.  Corporation  of  Liverpool,  1  M.  »fe  K.  95  ;  Hughes 
v.  Biddulph,4  Russ.  190. 

(2)  By  the  38th  order  of  Aug.  1 841 ,"  a  defendant  shall  be  at  liberty 
by  answer  to  dec'ine  answering  any  interrogatory  or  part  of  an  inter- 
rogatory, from  answering  which  he  might  have  protected  himself  by 
demurrer;  and  he  shall  be  at  liberty  so  to  decline,  notwithstanding  he 
shall  answer  other  parts  of  the  bill  from  which  he  might  have  protected 
himself  by  demurrer. 

Where  a  bill  seeks  to  set  aside  an  agreement  for  the  purchase  of  a  Discovery  of  a 
secret,  on  the  ground  of  fraud  and  of  the  defendant  possessing  no  such  swcrto  abiUfor 
secret,  the  defendant  cannot  demur  to  such  of  the  interrogatories  as  p';"c"fa8'^'^he^Q* 
seek  a  discovery  of  the  nature  of  the  secret,  although  by  the  agree-  of. 


861  ANSWERS.  [Chap.  II. 

as  insufficient ;  and  upon  that  exception  it  will  be 

ier  caaeaaTe  Cited.  Faulderv.  Stuart,  6.      See,     however,    the   distinction 

11  Ves.   29G;  Shaw    v.  Ching,   11  taken   below,  pp.  3C9,  370,  312,  be- 

Ves.  303  ;    Rowe  v.   Teed,   15  Ves.  tween  the  cases  in  whicli  the  defen- 

372  ;  Somerville  v.  Mackaij,  IG  Ves.  dant  by  answer  denies  the  title  of  the 

382  ;  Leonard  w.  Leonard,  1  Ball.  &  plaintiff,  in  respect  of  which  the  dia- 

B.  323  ;  3  Madd.  70  ;  v.  Harri-  covery  is  sought,  and  those  in  which 

son,  4  Madd.  252,  ani  1  Sim.  &  Stu.  he  thereby  denies  the  validity  of  the 

ment,  as  stated  in  the  bill,  both  parties  covenant  that  they  will  not  di- 
vulge or  make  known  the  secret ;  and  although  the  defendant,  in  his 
answer  to  the  remainder  of  the  bill,  denies  all  fraud,  and  insists  on  the 
efficacy  of  the  secret  process,  and  that  he  had  communicated  the 
secret  to  the  plaintiff.  For  the  defendant  is  bound  to  discover  the  na- 
ture of  the  secret,  because  a  disclosure  is  necessary  even  for  the  trial 
of  the  case ;  inasmuch  as  the  only  mode  in  which  such  fraud  can 
be  established,  is,  by  comparing  that  .which  the  defendant  alleges  to 
be  his  secret  with  that  which  was  commonly  or  previously  known  to 
other  persons.     Carter  v.  Goetze,  2  Keen,  581. 

Prior  to  the  38th  order  of  August,  1841,  it  was  a  rule  that  he  who 
answered  at  all  must  answer  fully,  so  that  a  defendant  who  did  not 
Necessity  for  protect  himself  from  answering  by  plea,  on  the  ground  that  he  was  a 
^  ^"  purchaser  for  valuable  consideration  without  notice,  but  submitted  to 
answer  in  part,  could  not  protect  himself,  on  the  ground  of  his  purchase, 
from  answering  fully.  Otey  v.  Leighlon,  2  S.  &  S.  234.  And  if  a 
defendant  was  interrogated  as  to  whether  he  had  purchased  certain 
judgments,  and  if  so,  for  what  considerations,  and  he  did  not  demur  or 
plead,  but  admitted  by  answer  that  he  purchased  such  incumbrances ; 
he  6ould  not  refuse  to  discover  what  he  gave  for  them,  although  he 
said  that  he  was  a  purchaser  for  valuable  consideration,  without  no- 
tice of  the  plaintiff's  f quity.     Lancaster  v.  Eicrs,  1  Phil.  349. 

By  the  38th  order  of  Aug.  1841,  "  a  defendant  shall  be  at  liberty  by 
answer  to  decline  answering  any  interrogatory  or  part  of  an  interroga- 
tory, from  answering  which  he  might  have  protected  himself  by  de- 
murrer; and  he  shall  be  at  liberty  so  to  decline,  notwithstanding  he 
shall  answer  other  parts  of  the  bill  from  which  he  might  have  pro- 
tected himself  by  demurrer." 

According  to  some  decisions,  this  order  applies  where  the  bill  is  gene- 
rally demurrable,  as  well  as  to  a  case  where  a  demurrer  would  lie  to 
a  particular  question.  Fairihorne  v.  Weston^  3  Hare,  393.  So  that  a 
defendant,  having  answered  part  of  a  bill,  may  protect  himself  from 
answering  another  part  comprising  any  number  of  interrogatories  he 
pleases,  on  the  ground  tliiit  he  might  have  protected  himself  from  an- 
swering that  otler  part  by  demurrer  to  the  whole  bill.  Masonw  Wake- 
man,  10  Jur.  628;  Drale  v.  Drake,  2  Ilaie,  647. 


S.  II.  p.  III.]  ANSWERS.  362 

determined  whether  the  defendant  is  or  is  notobU- 
ged  to  make  the  discovery  (i)  (2).     If  the  defence 

ground  upon  which  that  title  is  al-         (t)  2  Ves.  Jun.  87 ;  and  see  1  Ves. 
leged  by  the  plaintiff  to  be  fouaded ;     Jun.  294,  note, 
and  see  below,  p.  377,  note  (g)  (1). 

But  accrding  to  the  case  of  Baddeley  v.  Curwen,  this  order  does 
not  extend  to  the  case  of  interrogatories  objectionable  only  on  the 
ground  that  a  demurrer  to  the  whole  bill,  if  filed  in  time,  would  have 
been  sustainable:  for,  if  it  did,  it  would  throw  on  the  master  the  obli- 
gation of  deciding  whether  a  bill  is  or  is  not  open  to  a  general  demur- 
rer— an  obligation  that  seems  not  to  have  belonged  to  his  office.  2 
Coll.  151. 

The  38th  order  applies  even  where  the  only  ground  of  demurrer  is  that 
the  suit  is  defective  for  want  of  parties.     Kaye  v.  Wall,  4  Hare,  127. 

If  specific  relief  is  prayed,  in  addition  to  discovery  in  aid  of  a  de- 
fence to  an  action  at  law,  the  defendant  is  not  bound  to  give  any  dis- 
covery which  is  not  incidental  to  the  relief  sought  by  the  bill,  and  which 
can  only  be  used  at'  law ;  because  the  discovery  would  be  obtained 
without  paying  that  price  for  it,  namely,  the  costs  of  the  suit,  which, 
in  the  case  of  a  pure  bill  of  discovery,  the  plaintifi"  is  required  to  pay. 
Desborough  v.  Curlewis,  3  Y.  &  C  Eq.  Ex.  175 ;  Jones  v.  Maund,  3 
Y.  &  C.  Eq.  Ex.  367. 

One  set  of  defendants  are  not  bound  to  answer  questions  upon  the 
casps  of  other  defendants,  Tornlinson  v.  Swinnerton,  2  Jiir.  393, 
V.  C.  E. 

A  partner  resident  in  England  of  a  foreign  firm  is  not  bound  to  set 
forth  a  schedule  of  books,  die.,  relating  to  the  business  of  euch  firm, 
and  in  theircustody ;  because  their  production  could  not  be  enforced. 
Martineau  v.  Cox,  2  Y.  &  C.  638. 

Where  one  of  the  assignees  of  a  bankrupt,  states  by  ^ay  of  answer 
to  a  bill,  that  he  only  acted  as  assignee  in  some  trifling  particulars  not 
connected  with  the  matters  in  the  bill  mentipned,  and  that  he  is  wholly 
ignorant  of  the  matters  set  forth  in  the  bill,  and  cannot  make  any  other 
answer  thereto  as  to  his  knowledge,  belief,  or  otherwise,  this  answer 
is  sufficient.     Jones  v.  Wiggins,  2.Y.  &  J.  385. 

(1)  [Also  Desplaces  v.  Goris,  1  Edwards'  V.  C.  Rep.  350  ;  Whitney 
V.  Belden,  ib.  386 ;  and  see  all  the  cases  on  this  "Subject  well  digested 
fn  note  (1)  to  Sweet  v.  Young,  in  1  vol.  Blum's  edition  of  Ambler.] 

(2)  [By  the  38th  Rule  of  the  N.  Y.  Chancery,  exceptions  to  answer 
in  an  injunction  cause  must  be  filed  within  ten  days  after  the  defen- 
dant has  answered:  otlierwise,  it  will  not  st;iy  a  motion  to  dissolve 
the  injunction.     But  this  rule,  it  has  been  decided  by  Chuncellor  Wal- 


362  ANSWERS.  [Chap.  II. 

Sybeb^yTn^  wliich  Can  be  made  to  a  bill  consists  of  a  variety 
of  circumstances,  so  that  it  is  not  proper  to  be 

363  offered  by  way  of  plea  (k)  ;  or  if  it  is  doubtful 
whether  as  a  plea  it  will  hold  ;  the  defendant  may 
set  forth  the  whole  by  way  of  answer,  and  pray  the 

364  same  benefit  of  so  much  as  goes  in  bar,  as  if  it  had 
been  pleaded  to  the  bill  (Z).  Or  if  the  defendant 
can  offer  a  matter  of  plea  which  would  be  a  com- 
plete bar,  but  has  no  occasion  to  protect  himself 
from  any  discovery  sought  by  the  bill,  end  can  offer 
circumstances  which  he  conceives  to  be  favourable 
to  his  case,  and  which  he  could  not  offer  together 
with  a  plea,  he  may  set  forth  the  whole  matter  in 

[309]     the  same  manner.     Thus,  if  a  purchaser  for  a  va- 
luable consideration,  clear  of  all  charges  of  fraud 
or  notice,  can  offer  additional  circumstances  in  his 
favour,  which  he  cannot  set  forth  by  way  of  plea, 
865  or  of  answer  to  support  a  plea,  as  the  expending  a 

considerable  sum  of  money  in  improvements,  with 
the  knowledge  of  the  plaintiff,  it  maybe  more  pru- 
dent to  set  out  the  whole  by  way  of  answer  than  to 
rely  on  the  single  defence  by  way  of  plea,  unless  it 
is  material  to  prevent  disclosure  of  any  circum- 
stance attending  his  title.  For,  a  defence  ^Yhich, 
if  insisted  on  by  a  plea,  would  protect  the  defend- 
ant from  a  discovery,  will  not  in  general  do  so  if 

{k)  Chapman  v.    Turner,  1   Atk.         (/)  See  Norton  v.    Turvill,   2    P. 
54.  Wms.  144. 

worth,  does  not  apply  where  a  complainant  has  waived  the  oath  to  the 
answer.  Livingston  v.  Livingston,  4  Paige's  Ch.  R.  Ill  ;  and  see  Rule 
40.  Besides  these  rules,  there  are  many  of  the  same  court  relating  to 
exceptions.  As  to  filing  and  submitting,  Rule  50  :  referenof  R.  51,  52, 
63,  125,  126;  master's  report,  R.  55,  56,  57,  60,  62;  scandal  and  im- 
pertinence, R.  53,  57,  106  ;  further  time  to  answer,  R.  55,  58,  59  ;  ex- 
ceptions to  report,  R.  62;  costs,  R.  58,  69,  60,  63.] 


S.II.  p.  III.]  ANSWERS.  365 

offered  by  way  of  answer  (Z).     To  so  much  of  the  Mode  of  answer 
bill  as  it  is  necessary  and  material  for  the  defend- 
ant to  answer  (m)  he  must  speak  directly  (1),  and 

(l)  2  Eq.  Ca.  Ab.  67  ;  Richardson  much  only  of  the  bill  aa  applies  to 
V.  Mitchell,  Sel.  Ca.  in  Cha.  51  ;  him.  (1)  Coop.  R.  215.  And  fur- 
above,  p.  360,  note  (A.)  ther,  with  respect  to  materiality  of 

(m)  It  seems,  a  mere  trustee,  in-  answer  see  below,  377,  note  (q.) 
cuftibrancer,  or  heir,  need  answer  so 

(1)  There  is  no  rule  that  a  man  must  either  admit  or  deny  his  own 

.  «       1        •  r-  I  11-  Averment  of  ig- 

recent  facts,     bo  that  if  he  states  that  he  is  unable  to  set  forth  as  to  norance  as  to  the 

his  knowledge,  remembrance,  information,  and  belief,  respecting  the  recent  facta.°'^ 

contents  or  purport  of  an  agreement  entered  into  by  him  about  six 

years  before  tlie  filing  of  the  bill,  and  destroyed  by  him  some  months 

before  that  time,  his  answer  will  not   be  deemed  insufficient.     Nelson 

V.  Ponsford,  4  Beav.  41, 

If  a  defendant  says  he  is  an  utter  stranger  to  a  matter,  and  cannot  Answering  aa  to 
,  1     1-   r  -1  1  .         ^  information, 

form  any  belief  concerning  the  same,  he  answers,  in  effect,  as  to  his 

information  as  well  as  belief,     Amhurst  v,  Khig,  2  S.  &  S.  183. 

In  the  absence  of  a  particular  exemption,  if  a  defendant  can  give  Obligation  of  a 
the  discovery,  he  must  give  it ;  and  if  he  cannot,  he  must  show  that  procure"\he 
he  has  done  his  best  to  procure  the  means  of  giving  it.     Taylor  v,  ??ean3  of  givinjr 
Rundell,  Cr.  &.  Phil.  104.     See  also   Sluart  v.  Lord  Bute,  11  Sim, 
442, 

Hence  he  is  bound  to  inspect,  and  answer  as  to  the  contents  of,  all 
documents  that  are  in  his  power;  and  all  documents  which  a  defend- 
ant has  a  right  to  inspect,  provided  he  can  enforce  that  right,  are 
deemed  to  be  in  his  "power;"  and  if  they  are  wrongfully  withheld 
from  his  inspection,  he  is  bound  to  resort  to  legal  proceedings  to  en- 
force his  right  to  inspect  them  ;  and  the  court  will  allow  him  time  for 
that  purpose,  Taylor  v.  Rundell,  1  Phil.  222,  See  also  Attorney 
Gen.  v.  Bailiff's,  ^c.  of  East  Bedford,  2  M,  &.  K.-35. 

And  if  a  bitt  states  a  fact  not  denied  by  the  answer,  by  which  it 
appears  that  the  defendant  has  the  means  of  making  an  inquiry  as  to 
a  point  upon  which  he  is  inten-ogated,  he  muot  set  forth  as  to  his 
knowledge,  information,  remembrance,  or  belief,  with  regard  to  that 
point.  Neate  V.  Duke  nf  Marlborough,  2  Y,  &  C.  Eq.  Ex.  3,  So 
that  if  a  defendant,  who  acted  in  a  transaction  by  his  solicitor  simply, 
is  interrogated  as  to  communications  between  such  solicitor  and  tlie 
plaintiff  and  as  to  entries  made  by  such  solicitor,  it  is  not  sufficient 
for  him  to  say  he  does  not  know,  and  is  unable  to  answer  as  to  his 
information,  beliof,  or  otherwise  he  must  say  that  he  has  endeavored 
to  obtain  the  information   from  such  solicitor,  even  though  the  latter 

30 


discovery. 


366  ANSWERS.  [Chap.  II. 

without  evasion,  and  must  not  merely  answer  the 

has  long  ■ceased  to  be  his  solicitor.  For  the  acts  of  the  agent  bind  the 
principal  ;  and  although  the  plaintiff  might  himself  make  inquiries  of 
the  solicitor,  and  might  call  him  as  a  witness,  yet  he  is  entitled  to  such 
an  admission  of  facts  from  the  defendant,  to  relieve  himself  from  the 
necessity  of  adducing  proof  from  other  sources.  Earl  of  Glengall  v. 
Fraser,  2  Hare,  99.  If  a  bill  charge  notice  of  particular  fact,  the  answer 
must  be  to  it  without  special  interrogatory.  But  defendant  need  not 
answer  interrogatories  not  warranted  by  some  matter  contained  in  a 
former  part  of  the  bill.  The  Mechanics^  Bank  of  Alexandria  v.  Lynn,  1 
Peters,  383,  where  a  bill  requires  answer  to  pertinent  interrogatories, 
according  to  knowledge,  information,  and  belief,  defendant  must  respond 
not  merely  to  his  knowledge,  but  information  if  any  derived  from  others 
and  his  belief  which  all  of  his  knowledge  and  information  have  produced. 
Kittredge  v.  Claremoni  Banket  al.,  7  Woodbury  and  Minot's  Rep.  1st 
C.  U.  S.  246,  247,  244. 

If  the  interrogatory,  pertinent  to  the  charge  in  the  bill,  require  de- 
fondant  to  answer  to  his  belief,  as  well  as  to  his  knowledge,  remem- 
brance, and  information,  and  he  do  not,  it  is  not  sufficient  that  he  an- 
swer to  his  knowledge,  but  must  to  his  information  and  belief,  if  not  it 
is  exceptionable  ;  for  the  general  rule  is  that  what  the  defendant  be- 
lieves the  court  will  believe.  The  plaintiff  contended  that  where  the 
answer  is  on  information,  he  was  entitled  to  know  the  precise  degree  of 
credit  defendant  gives  to  such  information.  Defendant  is  bound  to  an- 
swer conscientiously  as  to  the  state  of  his  mind,  whether  he  believes 
the  fact  or  believes  it  highly  or  merely  probable,  or  has  no  belief  what- 
ever as  to  it.  The  exception  shows  that  the  charges,  the  interroga- 
ting applicable  thereto,  to  which  the  answer  is  responsive,  the  terms 
of  the  answer,  verbatim,  so  as  the  court,  without  scrutinizing  the  bill 
and  answer,  may  judge  if  it  be  or  not  insufficient. 

In  the  case  the  answer  was  "  no  knowledge,  information  and  belief, 
that  it  was  not  true,"  but  defendant  did  not  as  he  should  state  whether 
lie  believed  it  to  be  true.  When  defendant  does  not  deny,  but  states  his 
belief,  he  admits  it  true;  or  that  he  does  not  mean  to  controvert  it^  But 
stating  h&has  no  knowledge  that  the  fact  is  as  stated,  without  any  an- 
swer as  to  his  belief  concerning  it,  is  not  such  an  admission  as  is  evi- 
dence of  the  fact.  Defendant  should  answer  in  direct  and  unequivocal 
terms  as  to  the  state  of  his  mind,  as  to  every  fact  stated  in  the  bill  to 
which  he  is  interrogated,  either  that  he  does  believe  the  matter  inquired 
of,  or  cannot  form  any  belief,  or  has  none  concerning  it;. and  according 
as  the  answer  may  be,  he  must  state  that  he  calls  on  complainant  for 
proof,  or  that  he  admits  the  particular  fact,  or  that  he  wants  all  contro- 


S.  II.  p.  III.]  ANSWERS.  366 

several  charges  literally,  but  he  must  confess  or  tra- 

versy  concerning  it.    Brooks  v.  Byam  et  al,  1  Story  R.  299,  300,  304, 
296. 

So  in  Tradesman's  Bank  v.  Hyatt,  2  Edwards'  V.  C.  R.  195,  it  was 
held,  that  the  defendant  must  answer  to  the  best  of  his  knowledge,  re- 
membrance, information  and  belief.  "  That  he  has  no  knowledge  or  in- 
formation whatever  excepting  what  is  derived  from  the  bill,"  or  "  that  he 
is  utterly  and  entirely  ignorant  excepting  from  the  information  of  the 
bill,"  would  be  sufficient ;  but  that  he  has  no  knowledge  vvhatever  ex- 
cepting what  is  derived  from  the  allegations  in  the  bill,  is  not  a  suffi- 
cient answer. 

In  Norton  v.  Wood,  5  Paige's  R.  261,  262,  260,  on  exceptions  to 
master's  report  on  exceptions  to  answer,  the  court  decided  that,  if  a 
fact  is  derived  from  information  of  another,  and  believed,  it  may  be 
stated  in  that  form.  As  where  a  defendant  says  he  sent  his  clerk  for 
payment,  who  returned  and  informed  him  the  complainant  promised  to 
pay  in  a  short  time,  which  information,  the  defendant  believes  to  be 
true.  Tiiis  was  an  averment  of  a  promise  to  pay  or  may  be  charged 
in  this  form,  as  defendant  could  not  swear  to  it  as  a  fact  in  his  own 
knowledge. 

Where  defendant  expressly  denies  that  to  his  recollection  and  be- 
lief he  did  then  and  there,  or  ever  make  or  enter  into  any  agreement 
with,  &c.,  that  the  premises  should  be  redeemable,  «&c.,  as  stated 
in  the  bill :  Held,  that  those  matters  being  therein  directly  and 
expressly  charged  on  defendant,  and  so  recent,  it  is  not  sufficient 
for  him  to  deny  the  facts  according  to  his  recollection  or  be- 
lief. To  such  allegations  under  such  circumstances,  he  was  bound  to 
make  a  positive  and  direct  denial.  His  denial,  according  to  his  recol- 
lection or  belief,  must,  under  the  circumstances,  be  treated  in  a  court 
of  equity  as  a  mere  evasion.  So,  where  he  adopts  like  modes  of  de- 
nial to  other  facts  which  rest  on  his  own  knowledge,  or  whether  he  re- 
ceived notice  or  not,  appear  a  matter  of  inadvertence  or  mistake,  but 
in  the  whole  structure  of  the  answer  there  is  a  studied  choice  of  phra- 
seology to  escape  from  any  direct  answer  to. the  allegations,  the  court 
will  regard  it  as  insufficient.  Taylor  et  ux.  v.  Luther,  2  Sumner's 
C.  C.  Rep.  231,  228. 

The  rule  usually  laid  down  is,  that  the  defendant  is  bound  to  an- 
swer every  part  of  the  substance  of  the  statement  and  charges  in  the 
bill,  and  that  every  particular  interrogatory,  founded  upon  an  express 
allegation  in  the  body  of  the  bill,  must  be  answered  precisely,  in  all  its 
bearings  and  circumstances.  The  case  of  Smith  v.  Clark,  4  Paige, 
is  full  to  the  point  that  the  charging  part  of  the  bill  is  not  to  be  treat- 
ed as  mere  surplusage,  but  that  it  must  be  answered.  If  the  answer 
Bets  up  ajirmatiie  matter  by  way  of  avoidance,  and  ia  not  reponsive 


< 

366  ANSWERS.  [Chap.  II. 

verse  the  substance  of  each  charge  (n)  (1).     And 

(n)  Ord.  in  Ch.  28, 179,  Ed.  Bea. ;     Anstr.  64  ;  2  Ves.  &,  B.  1C2  ;  aud  see 
Hind  V.  Dods,  Barnard,  258  ;   S.  C.     Hall  v.  Bodily,  1  Vern.  470. 
2  Eq.  Ca.  Ab.  69  ;  Deane  v-  Rastron, 

to  the  bill,  upon  a  traverse  of  the  answer,  all  the  authorities  agree  that 
the  answer  is  not  proof  of  such  matters.  But  if,  however,  the  affirma- 
iiie  matter  in  the  answer  is  responsive  to  the  bill,  it  cannot  be  dis- 
guised that  there  is  considerable  discrepancy  in  the  authorities,  whe- 
ther upon  a  traverse,  the  answer  should  be  received  as  proof  or  as  mere 
pleadintr,  to  be  sustained  by  ordinary  proof  like  a  special  plea.  Allen, 
adm.  v.  Mower,  17  Vermont  Rep.  67. 

Where  the  matters  charged  in  the  bill  are  alleged  to  have  occurred 
with  divers  circumstances,  it  is  not  sufficient  for  the  defendant  to  an- 
swer such  matters,  literally  denying  the  same  upon  his  information  or 
knowledge  with  the  attendant  circumstances ;  but  he  must  admit  or 
answer  the  substance  of  each  charge.  King  v.  Ray,  II  Paige  Ch. 
Rep.  235. 
Eraelve  answer.  (0  When  a  defendant  answers  conjunctiiely,  that  he  is  unable  to  an- 
swer several  tilings,  his  answer  is  evasive,  unless  he  adds  that  he  can- 
not answer  any  of  them  ;  as  when  he  says  that  he  cannot  set  forth  when 
he  parted  with  papers  and  wliat  has  become  of  them.  Tipping  v. 
Clark,  2  Hare,  390. 

And  where  an  information  prays  an  account,  and  payment  of  arrears 
of  rent  out  of  land,  and  that  for  that  purpose  the  lands  may  be  ascer- 
tained and  distinguished,  and  it  charges  that  the  defendant  has  in  his 
possession  deeds  relating  to  the  land  and  to  the  rent,  whereby  the  truth 
of  the  allegations  in  the  information  would  appear,  and  the  answer 
denies  the  defendant's  possession  of  any  deeds  relating  to  the  land  and 
the  rent,  or  whereby  the  truth  of  the  matters  mentioned  in  the  infor- 
mation would  appear,  the  answer  is  insufficient:  for  the  defendant  is 
bound  to  state  whether  or  not  he  has  any  deeds  relating  even  to  the 
land  alone,  for  the  purpose  of  enabling  the  plaintiff  to  identify  the  land, 
which  is  one  link  in  the  plaintiff's  title.  Attorney  General  v.  Lord 
Dinorben,  2  Jur.  129,  Ex.  Eq.  See  further,  [  Woods  v.  Morrell,  1  J.  C.  R. 
103;  3Iorris  v.  Parker,  3  lb.  297;  Smith  v.  Lasher,  5  l\).  247;  Pettit 
V.  Candler,  on  appeal,  3  Wendell's  R.  618.  If  a  defendant  submit  to 
answer  at  all,  he  must  answer  fully  and  particularly;  not  merely  limit- 
ing his  responses  to  the  interrogations  of  the  bill.  Hogthorp  v.  Hook, 
1  Gill  &  Johns.  270;  Methodist  Episcopal  Church  v.  Jacques,  1  J.  C.  R. 
65;  and  see  Phillips  v.  Provoosl,  4  J.  C.  R.  205 ;  Frost  v.  Beekman,  1  lb. 
288;  Cuyler  v.  Bogert,  3  Paige's  C.  R.  186;  Utica  Insurance  Co.  v. 
Lynch,  ib.  2 10;  Warsjiel.i  v.  Gambril,  1  Gill  &,  Johns.  503.  The  com- 
plainant is  entitled  to  answer  to  every  fact  charged  in  the  bill,  the  admis- 


S.  II.  r.  III.]  ANSWERS.  366 

wherever  there  are  particular  precise  charges  (o), 
they  must  be  answered  particularly  and  precisely,  367 

and  not  in  a  general  manner,  though  the  general 
answer  may  amount  to  a  full  denial  of  the  charges 

(o)  These,  however,  it  seems,  to     King  v,  Marissal,  3  Atk.  192,  Du^ 
the  end  mentioned  in  the  text,  must    rant  v.  Durant,  1  Cox  R.  58. 
be  specially  interrogated  to  (1).     See 


eion  or  proof  of  which  is  material  to  the  relief  sought,  or  necessary  to 
substantiate  his  proceeding  and  make  ti.em  re^^ular.  As  a  general 
rule,  if  the  charge  in  the  bill  embraces  several  particulars,  the  answer 
should  be  in  the  disjunctive,  denying  each  particular  or  admitting  some 
and  denying  the  others,  according  to  the  fact.  Davis  v.  Mapes,  2 
Paige's  C.  R.  105;  Ulica  Ins.  Co.  v.  Lynch,  supra;  King  v.  Ray,  11 
Paige's  C.  R.  235. 

A  defendant  must  give  a  full,  frank  and  explicit  disclosure  of  all 
matters  material  or  necessary  to  be  answered,  whether  resting  within 
his  own  knowlege  or  upon  his  information  and  belief.     Baggot  v.  Henry, 

1  Edwards'  V.  C.  R.  7. 

Where  suspicious  circumstances,  gross  fraud  and  collusion  are 
charged  in  a  bill,  a  defendant  will  be  held  to  a  strict  rule  in  answering. 
Not  only  his  motives,  but  his  secret  designs,  his  "  unuttered  thoughts" 
must  be  exposed.     Mechanics'  Bank  v.  Levy,  ib.  316. 

It  is  improper  to  incorporate  in  an  answer  to  an  amended  bill,  the 
whole  matter  of  the  former  answer.     Bennington  Iron  Co.  v.  Campbell, 

2  Paige's  C.  R.  160.  No  particular  form  of  words  is  necessary  in  an 
answer.  It  is  sufficient  if  it  be  not  evasive,  and  if  the  substance  is 
preserved.     Uticd  Ins,  Co.  v.  Lynch,  .supra. 

The  true  tests  as  to  whether  questions  in  a  bill  are  to  be  answered 
or  not,  are:  1st,  Whether  the  answers  might  lead  to  the  crimination  of. 
the  defendant;  and,  2dly,  Whether  they  are  relevant  and  may  be  mate- 
rial to  the  case  of  the  complainant.     Mant  v.  Scott,  3  Price,  477.] 

What  the  complainant  is  bound  to  state  in  his  bill,  must  be  admitted 
or  denied  by  the  answer.  Thus  when  a  bill  for  partition,  not  on'y  the 
rights  of  the  parties  but  the  rights  of  the  defendants  as  between  them- 
selves, are  stated  as  required  by  the  174th  Rule  of  New- York,  and  by 
the  Revised  Statutes,  which  require  that  the  rights  of  all  parties  be 
set  forth  as  far  as  they  are  known.  A  defendant  in  his  answer  must 
answer  as  to  such  rights  either  by  a  general  admission  tliat  the  rights 
of  the  several  parties  are  as  stated  or  in  some  other  manner.  Van 
Cortland  v.  Beekman  et  ah,  6  Paige's  R.  496-6,  492. 

(1)  See  note  to  p.  92,  supra. 


867  ANSWERS.  [Chap.  II. 

[310]     {p)  (1).     Thus  where  a  bill  required  a  general  ac- 

(p)  2  Eq.  Ca.  Ab.  67 ;  Paxton's  792  ;  Wharton  v.  Wharton,  1  Sim. 
case,  Sel.  Ca.  in  Ch.  53  ;  Prout  v.  &  Stu.  235 ;  aud  see  Amhurst  v. 
Underwood,  2  Cox,  R.  135  •   6  Ves.    King,  2  Sim  &  Stu.  183.     . 

(1)  [Wood&r.  Morrell,  1  J.  C.  R.  103,  A  defendant  is  not  bound 
to  answer  interrogatories  asking  a  disclosure  of  matter  no  way  con- 
nected with  or  material  to  the  case.  Hagihorp  v.  Hook,  1  Gill  &  Johns. 
270;  and  see  Mechanics^  Bank  v.  Levy,  3  Paige's  C.  R.  656. J 

The  charge  or  fact  must  be  stated  in  the  bill  on  which  the  interroga- 
tory is  founded,  for  if  it  be  irrelevant  to  the  matters  charged,  the  de- 
fendant need  not  answer  the  interrogatories.  Brooks  v.  Byam  et  al.t 
360-1.  1  Story's  C.  C.  R.  296.  The  defendant  must  answer  the  charg- 
ing  as  well  as  stating  part,  and  his  answer  will  be  equally  evidence  in 
his  favor  if  oath  is  not  waived.  Smith  v.  Clark  and  Smith,  4  Paige's 
R.  373,  368. 

Where  answer  on  oath  is  waived  it  is  not  evidence  for  defendant; 
but  as  a  pleading  complainant  may  avail  of  admissions  and  allegations 
therein,  which  establish  the  case  made  by  his  bill.  The  answer  is  not 
to  be  taken  together  as  evidence  even  where  it  is  on  oath.  Complain- 
ant may  avail  admissions  in  one  part  without  being  also  bound  by  the 
statements  and  allegations  in  the  other  parts  of  same  answer.  Bart- 
,'  lett  v.  Gale  el  al,  4  Paige's  R.  607,  503. 

Where  defendant  in  his  answer  "  expressly  charges  "  certain  f^cts 
to  be,  &c.,  on  which  he  intends  to  rely  for  defence,  and  swears  to  the 
answer,  he  swears  to  the  truth  of  the  facts,  not  to  the  fact  of  the  charge, 
and  if  the  facts  stated  or  charged  are  material  and  not  true,  perjury 
may  be  assigned  upon  it.  Quackenbush  v.  Van  Riper,  Saxton's  Ch. 
R.  485-6,  476. 

Answer  of  one  defendant  is  not  evidence  against  a  co-defendant,  for 
the  plaintiff  may  so  frame  his  bill  and  interpogatories  as  to  elicit  evi- 
dence  from  one  defendant  to  charge  another,  and  to  exclude  such  mat- 
ters as  might  discharge  him.  To  admit  the  answer  of  the  one  to  be 
evidence  against  the  other  under  euch  circumstances,  and  when  cross- 
interrogatories  could  not  be  admitted,  would  give  to  the  plaintiff  an 
undue  advantage  against  the  manifest  principles  of  impartial  justice. 
But  where  the  answer  is  unfavorable  to  the  plaintiff  and  consequently 
operates  favorably  for  a  co-defendant,  this  reason  is  not  applicable. 
Where  plaintiffs  call  on  defendant  for  discovery,  requiring  leave  to 
answer  under  oath  fully  to  all  the  matters  charged  in  the  bill,  they  can- 
not be  allowed  to  say  that  his  answer  is  not  testimony.  The  answer  of 
a  defendant  responsive  to  the  bill  is  evidence  for  co-defendant,  more 
especially  when  such  co-defendant  being  a  depository  of  papers,  and 
became  such  at  request  of  both  parties,  has  no  interest  in  the  question 


S.  II.  p.  III.]  ANSWERS.  ,  368 

count,  and  at  the  same  time  called  upon  the  de- 
fendant to  set  forth  whether  he  had  received  par- 
ticular sums  of  money  specified  in  the  bill,  with 
many  circumstances  respecting  the  times  when, 
and  of  whom,  and  on  what  accounts  such  sums 
had  been  received,  it  was  determined,  that  setting 
forth  a  general  account  by  way  of  schedule  to  the 
answer,  and  referring  to  it  as  containing  a  full  ac- 
count of  all  sums  of  money  received  by  the  defend- 
ant, was  not  sufficient,  and  the  plaintiff  having  ex- 
cepted to  the  answer  on  this  ground,  the  exception 
was  allowed  ;  the  court  being  of  opinion  that  the 

and  defends  himself  under  the  title  of  the  other  defendant.  Mills  v. 
Gore  el  al,  20  Pick.  R.  (Mass.)  34-35,  28. 

It  is  evidence  against  his  co-defendant  where  latter  claims  through  him, 
or  wherever  the  confession  of  a  party  would  be  good  evidence  against 
another,  the  answer  in  such  case,  a  fortiori,  may  be  read  against  the 
latter.  It  is  evidence  against  plaintifT,  even  if  it  be  doubtful  whether 
a  decree  can  be  made  against  defendant.  The  plaintiffs  cannot  avail 
themselves  of  the  answer  of  a  defendant  who  is  substantially  a  plain- 
tiff. It  is  not  evidence  against  a  co-defendant.  Field  et  al.  v.  Holland 
et  al,  6  Cranch's  R.  8-29,  2  Condens.  R.  285. 

W^lth  regard  to  the  sufficiency  of  an  answer.  Sir  J.  Wigram,  V.  C,  SufBcienojof 
observed,  in  Tipping  v.  Clarke:  "If  the  defendant  will  simply  answer 
in  the  terms  of  the  bill,  he  avoids  all  difficulty  on  the  subject.  But  if, 
instead  of  doing  so,  he  gives  an  answer  which  is  not  precise  with  re- 
ference to  all  the  matters  on  which  he  is  interrogated,  and  then  endea- 
vors to  shelter  liimself  under  a  general  denial,  coupled  with  the  words 
'  except  as  aforesaid,'  or  similar  expressions,  he  makes  it  often  diffi- 
cult to  decide  whether  the  answer  is  sufficient  or  not.  The  rule,  since 
I  have  known  the  practice  of  the  court,  has  been,  that  wherever  the 
defendant  denies  the  bill  to  be  true, '  except  as  aforesaid,'  or  '  except  aa 
appears  by  the  otlier  parts  of  the  answer,'  if  there  be  not  found  on  the 
answer  a  clear  and  sufficient  statement  wiiich  to  a  reasonable  extent 
meets  the  whole  case,  the  answer  is  deemed  to  be  evasive."  2  Hare, 
383. 

The  court  never  requires  a  plaintiff  to  be  satisfied  with  a  mere 
general  denial  in  answer  to  a  specific  charge.  Tipping  v.  Clarke,  2 
Hare,  389. 


answer. 


368  ANSWERS.  [Chap.  II. 

defendant  was  bound  to  answer  specifically  to  the 
specific  charges  in  the  bill,  and  that  it  was  not  suf- 
ficient for  him  to  say  generally,  that  he  had  in  the 
schedule  set  forth  an  account  of  all  sums  received 
by  him  {q)  (1). 

369  Although  the  defendant  by  his  answer  denies  the 

Necessity  of  dis-      •■  -t  n    t  ^     •        •  rr»  •  i  i 

covery,   where  titlc  01  thc  plamtiiT,  yct  m  many  cases  he  must  make 

the       defendant  r  '   ^  J 

tiff''8^^\'itie.'"or  ^  discovery  prayed  by  the  bill,  though  not  material 
rtf  matedamy  to  tho  plaintiff^'s  titlc,  and  though  the  plaintiff,  if 
ry  dependL  °'^'"  he  has  no  title,  can  have  no  benefit  from  the  disco- 

iq)    Hepburn    v.     Durand,   20th     Bro.  C.  C.  503  ;    but  see  White  t. 
Nov,   1779,  in  Cha. ;    S.   C.  rep.   1     Williains,8Yos.  193.  (1) 

Setting  forth  a       (1)  A  defendant  is  not  bound  to  set  forth  a  settled  account,  if  the 
bill  charges  that  if  there  was  any  settled  account,  the  same  was  fraudu- 
lent and  collusive,  and  merely  prays  a  discovery  in  respect  of  such 
pretended  settled  account.     Davies  v.  Davies,  1  Keen,  534. 
Answer  setting      A  defendant  is  not  bound  to  set  forth  accounts  where  they  are  of 
count8^°and^nu-  ^^''y  great  length :  it  is  sufficient  in  such  a  case  to  refer  to  the  books 
merous  docu-     jjj  which  they  are  to  be  found.     Nor  is  it  necessary  to  specify  all  the 
documents  relating  to  the  subject,  where  that  would  occupy  a  schedule 
of  an  oppressive  length:  it  is  sufBcient  to  specify  the  most  important; 
and  then  to  say  that  there  are  others  contained  in  boxes  or  bundles, 
marked  A,  B,  &c.     Christian  v.  Taylor,  11  Sim.  401. 
Answer  setting        Where  a  banker  is  required  to  set  forth  the  particulars  of  the  con- 
account!"*''^"^     sideration  given  by  him  for  a  bill  of  exchange,  and  he  answers  that 
the  consideration  consisted  of  cash,  bills,  and  notes,  drawn  out  of  his 
banking  house  from  time  to  time,  in  the  regular  course  of  dealing  be- 
tween a  banker  and  his  customers,  this  is  a  sufficient  answer,  without 
setting  out  the  banking  account.      Webster  v.  Threlfall,  2  S.  &  S.  190. 
Setting  out  ac-       A  defendant  may  set  out  accounts  at  length,  and  copies' of  promis- 
pies  of  promis-  sory  notes,  undertakings,  acknowledgments,  and  cheques,  where  ^the 
cheques'&c         interrogatories  in  the  bill  appear,  in  effect,  though  not  literally,  to  re- 
quire it,  and  where   it  appears  necessary  to  refer  to  them,  in  order 
duly  to  qualify  the  defendant's  statements  as  to  his  knowledge  of  the 
cash  transactions  to  which  the  interrogatories  relate.  Davis  v.  Cripps, 
2  Y.  «&  C.  Ch.  435. 
Setting  forth  in-       Where  it  is  necessary  for  the  sake  of  perspicuity,  a  defendant  may 

formation    in  r      i      i       ■    <-  •  •      i  •  ■      i    i  i         i  ^ 

eolumuB.  set  forth  the  information  required  in  a  schedule  with  columns.     Gom- 

pertz  V.  Best,  1  Y.  &  C.  Eq.  Ex.  114. 


S.  II.  p.  III.]  ANSWERS.  369 

very.  As  if  a  bill  is  filed  for  tithes,  praying  a  dis- 
covery of  the  quantity  of  land  in  the  defendant's 
possession,  and  of  the  value  of  the  tithes,  though 
the  defendant  insists  upon  a  modus,  or  upon  an  ex- 
emption from  payment  of  tithes,  or  absolutely 
denies  the  plaintiff's  title  (r),  he  must  yet  answer  to  [^H] 
the  quantity  of  land  and  value  of  the  tithes  (s). 
Or  if  a  bill  is  filed  against  an  executor  by  a  creditor 
of  the  testator,  the  executor  must  admit  assets,  or 
set  forth  an  account,  though  he  denies  the  debt  (t)  (1) . 

But  where  the  defendant  sets  up  a  title  in  him-  370 

self,  apparently  good,  and  which  the  plaintiff  must 
remove  to  found  his  own  title,  the  defendant  is  not  . 
generally  compelled  to  make  any  discovery  not  ma- 
terial to  the  trial  of  the  question  of  title.  Thus, 
where  a  testator  devised  his  real  estate  to  his  ne- 
phew for  life,  with  remainder  to  his  first  and  other 
sons  in  tail,  with  reversion  to  his  right  heirs,  and 
made  his  nephew  executor  and  residuary  legatee 
of  his  will,  and  on  the  death  of  the  nephew  his  son 
entered  as  tenant  in  tail  under  the  will ;  upon  a  bill 
filed  by  the  heir  at  law  of  the  testator,  insisting  that 
the  son  was  illegitimate,  tliat  the  limitations  in  the 
will  were  therefore  spent,  and  that  the  plaintiff  be- 
came entitled  as  heir  to  the  real  estate,  and  praying 

(r)  See,however,  Gilb.  Ca.  in  Cha.         (t)  Randal  v.  /fead,  Hardr,  188. 

229.  See   Sweet   v.    Young,  Ambl.  353  ; 

(s)    Langham   v. — ■,    Hardr.  11  Ves.  304. 

130. 


,(1)  If  a* bill  is  filed  by  persons  claiming  to  be  next  of  kin,  against      Nccegsity  for 
the  administrator,  praying  the  usual  accounts,  he  must  set  tliem  forth',  ^"'[h"ugh*pilun. 
althoutrh  by  his  answer  he  denies  that  the   plaintiffs  are  next  of  kin,  tt^'a  title  be  de- 
and  he  himself  claims  to  be  one  of  the  next  of  kin.     Dott  v.  Hayes,  10 
Jur.  628. 


870  ANSWERS.  [Chap.  II. 

an  account  of  the  personal  estate,  and  application 
thereof  in  discharge  of  debts  and  incumbrances  on 
the  real  estate,  the  defendants  against  whom  the 
account  was  sought  insisted  on  the  title  of  the  son 
as  tenant  in  tail  under  the  will,  and  that  they  were 
not  bound  to  discover  the  personal  estate  until  the 
[312]  plaintiff  had  established  his  title.  Exceptions 
having  been  taken  to  the  answer,  and  allowed  by 
the  master,  on  exception  to  his  report,  the  exceptions' 
to  the  answer  were  overruled ;  the  court  distin- 
guishing this  case,  which  showed  a  prima  facie 
title  in  the  defendant,  the  son  of  the  nephew,  from 
a  mere  denial  of  the  plaintiff's  title  (u). 

871  So  when  a  bill  claimed  the  tithe  of  rabbits  on  an 
alleged  custom,  and  the  defendant  denied  the  cus- 
tom, it  was  determined  that  the  defendant  was  not 
bound  to  set  forth  an  account  of  the  rabbits  alleged 
to  be  tithable  (x) ;  and  a  like  determination  was 
made  upon  a  claim  of  wharfage,  against  common 
right,  the  title  not  having  been  established  at  law  (t/). 

But  where  a  discovery  is  in  any  degree  con- 
nected with  the  title,  it  should  seem  that  a  defen- 
dant cannot  protect  himself  by  answer  from  making 
the  discovery ;  and  in  the  case  of  an  account  re- 
quired, wholly  independent  of  the  title,  the  court 
has  declined  laying  down  any  general  rule  (z),  de- 
ciding ordinarily  upon  the  circumstances  of  the 
particular  case.     Thus,  to  a  bill  stating  a  partner- 

(m)    Gethin    v.    GaZe,  29th    Oct.  (x)  Randal  v.  Head,  Hardr.  188; 

1739,  in  Chan.  M.  R.  ;    Ainbl.  354,  -S.  C.  Eq.  Ca.  Ab.  35. 

cited  in  Sioeet  v.  Young.     See  also  (y)     Northleigk      v.      Luscombe, 

Gunn  V.  Prior,  cited   11  Ves.  Jan.  Ambl.  612. 

291;   S.  C.  Dick.  657;    1  Cox   R.  («)  Hall    v.    Noyes,    Ld.    Chan. 

197.  13th  March,  1792. 


S.  II.  p.  III.]  ANSWERS.  871 

ship,  and  seeking  an  account  of  transactions  of  the 
alleged  partnership,  the  defendant  by  his  answer 
denied  the  partnership,  and  dochned  setting  forth 
the  account  required,  insisting  that  the  plaintiff 
was  only  his  servant ;  and  the  court,  conceiving 
the  account  sought  not  to  be  material  to  the  title,  [313] 
overruled  exceptions  to  the  answer,  for  not  setting 
forth  the  account  {a).  And  where  a  plea  has  been 
ordered  to  stand  for  an  answer,  with  liberty  to  ex- 
cept to  it  as  an  insufficient  answer,  the  court  has 
sometimes  limited  the  power  of  excepting,  so  as  to  372 

protect  the  defendant  from  setting  forth  accounts 
not  material  to  the  plaintiff's  title,  where  that  title 
has  been  very  doubtful  (Jb). 

If  an  answer  goes  out  of  the  bill  to  state  some  pentafn^^  ^' 
matter  not  material  to  the  defendant's  case,  it  will 
be  deemed  impertinent  (2),  and  the  matter  upon 

(a)  Jacobs  v.  Goodman,  in  Exch.  Threlfall,  2  Sim.  &  Stu-  190  ;   but 

16th  Nov.  1791  ;  S.  C.  rep.  3  Bro.  C.  see v.    Harrison,   4    Madd. 

C.  487,  note  ;    and  2  Cox    R.  282.  252.  (1) 

See  f/aH  V.  iVoyes,  3  Bro.  C.  C.  483  ;  (6)  Earl  of  Strafford  v.  Blake- 
Marquis  of  Donegal  v.  Steivart,  3  way,  G  Bro.  P.  C.  630,  Toml.  Ed  5 
Ves.  446  ;  Phelips  v.  Caney,  4  Ves.  King  v.  Holcombe,  4  Bro.  C.  C.  439; 
107;    11  Ves.  42,  293  ;    Webster  y.  Bayley  v.  Adarns,  6  Yes.  586. 


(1)  [The  principle,  that  a  defendant  who  denies  some  siihstantial 
leading  fact,  wliich,  if  admitted,  would  entitle  tlie  complainant  to  r^Jief, 
and  who  cannot  be  compelled  to  answer  further  until  the  trutii  of  the 
fact  is  disposed  of,  applies  only  to  a  case  of  an  account  of  partner-^hip 
transactions.  And  even  there,  a  general  denial  of  the  partnership  will 
not  avail,  if  the  bill  charges  that  it  would  appear  by  a  discovery  from 
the  defendant.  Desplacesv.  Goris,  1  Edwards'  V.  C.  R.  350;  and  see 
notes  at  pp.  308,  309,  arile.] 

(2)  Any  matter  in  an  answer  is  impertinent,  except  that  which  is  . 

^  ■'        J  r  '  r  Impertinence, 

called  for  by  the  bill,  or  would  be  material  to  the  defence  with  refer- 
ence to  the  order  or  decree  which  may  be  grounded  on  the  bill  to  which 
answer  is  made. 

Hence,  if  an  answer  to  a  mere  bill  of  revivor  contains  long  state- 


878  ANSWERS.  [Chap.  II. 

application  to  the  court,  will  be  expunged  (c).     So 

(c)    Alsager    v.   Johnson,  4  Ves.     217 ;    Norway   v.    Howe,  1    Meriv. 

merits  introduced  for  the  purpose  of  showing  that  the  proceedings  of 
the  plaintiff  have  been  irregular  and  oppressive,  such  statements  are 
impertinent;  because  the  defendant  can  have  no  advantage  from  them 
with  reference  to  the  order  to  revive,  and  his  proper  way  of  objecting 
to  irregularity  and  oppression  is  by  way  of  motion  or  petition.  Wag- 
staff  \.  Bryan,  1  Russ.  &  My.  28. 

And  the  answer  to  a  bill  of  revivor,  filed  after  a  decree,  must  not  go 
into  the  merits  of  the  original  cause,  whether  the  matter  he  introduces 
existed  at  the  time  of  the  decree,  or  has  arisen  since.     Such  matter, 
if  stated,  is  impertinent.     Devaynesv.  Morris,  1  My.  &  C,  213. 
•   •  But  a  defendant  to  a  bill,  filed  to  revive  a  suit  on  the  occasion  of  an 

abatement  caused  by  the  death  or  marriage  of  a  plaintiff,  may,  without 
impertinence,  state  that  he,  the  defendant,  has  become  bankrupt,  and 
object  that  the  plaintiff  is  not  entitled  to  the  same  decree  as  if  the  de- 
fendant had  not  become  bankrupt,  although  such  statements  do  not 
tend  to  show  that  the  plaintiff  is  not  entitled  to  revive  the  suit.  Lang- 
ley  \.  Fisher,  10  Sim.  345. 
liere  unneces-  As  a  general  rule,  words  are  not  impertinent  because  unnecessary 
parages.'  *"  where  they  are  not  irrelevant.  Marshall  v.  Mellerish,  6  Beav.  558. 
And  where  a  defendant  is  called  upon  to  set  forth  a  schedule  of  deeds 
in  the  ordinary  form,  and  without  any  limitation  being  required  or  sug- 
gested by  the  plaintiffs,  it  is  not  impertinent  to  set  forth  the  names  of 
the  parties,  in  addition  to  the  date  of  the  deed  and  the  estate  or  sub- 
ject to  which  it  relates.     Tench  v.  Cheese,  1  Beav.  571. 

But  when  a  defendant  refers  to  a  book  in  the  plaintiff's  possession, 
as  containing  the  information  required  of  him,  and  thereby  makes  that 
book  a  part  of  his  answer,  if  he  afterwards  gives  that  information,  it  is 
impertinence.  Marshall  v.  Mellerish,  6  Beav.  658. 
Prolixity.  And  if  a  bill  is  filed  for  an  account  of  real  estates,  and  a  schedule 
to  the  answer  sets  forth  tie  particulars  of  such  estates  with  undue 
prolixity,  after  the  manner  of  the  description  of  the  parcels  in  a  deed, 
it  is  impertinent.  And  although  there  are  a  few  passages  intermixed, 
which  are  not  unduly  prolix,  yet  notwithstanding  the  eleventh  order 
of  1828,  a  general  exception  for  impertinence  will  be  allowed,  if  a 
very  great  number  of  exceptions  would  be  required  in  order  to  specify 
the  objectionable  passages.  Byde  v.  Masterman,  Ci.  &,  Phil.  265. 
Exceptions  for  Each  exception  for  impertinerice  must  be  supported  in  Mo,  or  must 
fail  altogether;  so  that  if  any  part  of  the  matter  complained  of  as  im- 
pertinent is  not  so,  the  whole  exception  fails,  though  some  part  of  the 
matter  complained  of  is  impertinent.     Tench  v.  Cheese,  1  Beav.  571. 

On  this  subject,  see  also  note,  p.  57,  supra. 


S.  II.  p.  III.]  ANSWERS.  373 

in  an  answer,  as  in  a  bill,  if  any  thing  scandalous  is 

347;    French   v.    JacAro,  ibid.    357,     Madd.  51 ;  Parier  v.  FaiV/cc,  1  Sim. 
note;     Beaumont  v.    Beaumont,    5     &  Stu.  295  ;  2  Sim.  &  Stu.  193  (1). 

If  an  exception  for  impertinence  embraces  matters  of  the  answer 
which  are  responsive  to  allegations  in  the  complainant's  bill  as  well  as 
matters  which  are  impertinent,  the  whole  exception  must  be  disallowed. 
Curies  v.  Mas^en,  11  Paige's  Ch.  Rep.  13.  When  an  exception  to 
an  answer  for  impertinence  embraces  matters  which  are  proper  and 
material  to  the  defendant's  defence,  the  exception  will  be  overruled. 
An  exception  for  impertinence  cannot  be  allowed  in  part  only.  Bal- 
com  V  New- York  Life  Insurance  Company,  11  Paige's  Ch.  R.  454. 

(1)  Wagslaffv.  Bryant,  1  Russ.  &l  M.  28.  Impertinence  in  plead- 
ing consists  in  setting  forth  what  is  not  necessary  to  be  set  forth  :  as 
stuffing  the  pleadings  with  useless  recitals  and  long  digressions  about 
immaterial  matters.  Hood  v.  Inman,  4  J.  C.  R.  437.  It  was  said  by 
Chancellor  Kent,  in  Woods  v.  Morrell,  1  J.  C.  R.  103,  that  perhaps  the 
best  rule  to  ascertain  whether  matter  be  impertinent,  is  to  see  whether 
the  subject  of  the  allegation  could  be  put  in  issue  or  be  given  in  evi- 
dence between  the  parties.  But  this  definition  is,  perhaps,  hardly  bread 
enough — for  there  are  by-matters  affecting  the  costs,  &c.,  which  might 
not  be  legitimately  put  in  issue,  or  be  made  proof  of  as  to  the  direct 
matter  in  controversy. 

Chancellor  Walworth  has  more  clearly  and  fully  defined  what  may  be 
impertinent  by  showing  what  is  not  so.  "  If  the  matter  of  an  answer 
is  relevant,  that  is  if  it  can  have  any  influence  whatever  in  the  deci- 
sion of  the  suit  either  as  to  the  suhject-maHer  of  the  controversy,  the  par- 
ticular relief  lo  be  given,  or  as  to  the  costs,  it  is  not  impertinent."  Van 
Rensselaer  v.  Brice,  4  Paine's  C.  R.  174. 

Long  recitals,  stories,  conversations  and  insinuations  tending  to 
scandal  are  impertinent.  Woods  v.  Morrell,  supra.  Counsel  are  to 
take  care  that  a  pleading  "  be  not  stuffed  with  repetition  of  deeds,  wri- 
tings or  records,  in  hccc  verba,  but  the  effect  and  substance  of  so  much 
of  them  only  as  is  pertinent  and  material  to  be  set  down  ;  and  that  in 
brief  terms,  without  long  and  needless  traverses  of  points  not  traversa- 
ble, tautologies,  multiplication  of  words  or  other  impertinences  occa- 
sioning needless  prolixity."  Lord  Coventry's  order,  Beames,  165; 
Slack  v.  Evans,  7  Price,  278.  And  see  cases  of  impertinence  given 
and  illustrated,  1  Montague  on  Pleading,  200.  An  amended  bill  is  not 
prolix,  if  it  is  a  complete  record,  and  contains  all  the  char^ies  in  the 
original  bill.  Fitzpalrick  v.  Power,  1  Hogan's  R.  24.  The  case  of 
TVz7//s  V.  Evans,  2  Ball  &.  Realty,  225,  is  not  to  be  followed.  Ib^  A 
short  sentence  is  not  impertinent,  although  it  contains  no  fact  or  mate- 


gyj  ANSWERS.  [Chap.  II. 

inserted,  the  scandal  will  be  expunged  by  order  of 

rial  matter,  and  may  be  only  inserted  in  an  answer  from  abundant  cau- 
tion. A  statement  in  an  answer  introduced  to  siiow  the  temper  with 
which  a  bill  is  filed,  and  the  oppressive  course  pursued  by  a  complain- 
ant, is  not  impertinent  :  it  may  have  an  effect  upon  the  costs.  What- 
ever is  called  for  by  the  bill  or  will  be  material  to  the  defence,  with  re- 
ference to  tbe  order  or  decree  which  may  be  made,  is  proper  to  be  re- 
tained  in  an  answer.  Desplaces  v.  Goris,  1  Edward's  V.  C.  R.  350  ; 
Monroy  v.  Monroy,  ib.  383.  Bally  v.  Williams,  1  M'Cleland  & 
Young,  334.  If  a  bill  against  executors  calls  specifically  and  par- 
ticularly for  accounts  in  all  their  various  details,  a  very  voluminous 
schedule,  containing  a  copy  from  the  books  of  account,  specifying 
each  item  of  debit  and  credit,  will  not  be  impertinent.  It  seems,  it 
would  have  been  impertinent,  if  the  bill  had  not  thus  called  for  it. 
Scudder  v.  Bogart,  1  Edwards'  V.  C.  R.  372.  And  see  the  King  v. 
Teak,  7  Price,  278.  Copies  of  receipts  taken  by  the  defendants,  for 
moneys  paid  and  charged  in  account,  and  making  an  immense  sche- 
dule to  an  answer,  are  impertinent.  Scudder  v.  Bogert,  supra.  An 
exception  for  impertinence  must  be  supported  in  toto,  and  if  it  include 
any  passage  which  is  not  impertinent,  it  must  fail  altogether.  Wag- 
staff  v.  Bryan,  1  Russ.  &  M.  30  j  recognised  by  Chancellor  Walworth, 
in  Van  Rensselaer  v.  Brice,  4  Paige's  C.  R.  174.] 

If  the  matter  of  the  answer  is  relevant,  that  it  yet  can  have  any  in- 
fluence in  the  decision  of  the  suit,  either  as  to  the  subject  matter  of  the 
controversy,  the  particular  relief  to  be  given,  or  as  to  costs,  it  is  not 
impertinent.     Van  Reiisselaer  v.  Brice,  4  Paige's  R.  174. 

If  matters  in  a  joint  answer  furnish  no  valid  defence  as  to  the  defen- 
dants against  whom  relief  is  prayed  in  the  bill  and  can  have  no  influ- 
ence upon  the  decision  of  the  court  upon  the  question  of  costs,  or  as 
to  the  relief,  if  any,  which  might  be  given  in  the  suit,  they  should  be 
excepted  to  in  the  usual  form  as  impertinent ;  so  that  the  whole  of 
each  clause  or  allegation  may  be  stricken  out  of  the  joint  answer  of 
both  defendants.  Mclntyre  v.  Trustees  of  Union  College,  and  E.  Nott, 
6  Paige's  R.  242,  243,  239,  240. 

Held,  on  exception  to  report  of  master  on  exceptions  to  answer,  that 
where  a  statement  on  the  answer,  as  to  the  situation,  relationship  and 
means  of  living  of  a  person,  evidently  for  the  purpose  of  discrediting  him 
as  a  witness  for  complainant,  and  which  was  not  responsive  to  the  bill 
or  material  to.  the  defence,  the  matter  was  deemed  irrelevant  and  imper- 
tinent. In  a  suit  for  relief  against  judgment  at  law,  the  facts  on  trial 
should  be  directly  stated  in  the  answer  and  left  to  be  esfablished  by 
proof  in  the  usual  way.  The  judge's  notes  or  case  settled  therefrom 
are  not  conclusive  of  the  facts  on  the  trial,  and  ought  not  to  be  refer- 


S.  II.  p.  III.]  ANSWERS.  378 

the  court  (d).  But,  as  in  a  bill,  nothing  relevant 
will  be  deemed  scandalous  (e)  (1). 

2.  An  answer  usually  begins  (2)  by  a  reservation  374 

to  the  defendant  of  all  advantage  which  may  be  fw™  °^^'^ 
taken  by  exception  to  the  bill,  a  form  which  has  C^^fl 
probably  been  intended  to  prevent  a  conclusion  that 
the  defendant,  having  submitted  to  answer  the  bill, 
admitted  every  thing  which  by  his  answer  he  did 
not  expressly  controvert,  and  especially  such  mat- 
ters as  he  might  have  objected  to  by  demurrer  or 
plea.  The  answers  to  the  several  matters  con- 
tained in  the  bill,  together  with  such  additional 
matter  as  may  be  necessary  for  the  defendant  to 
show  to  the  court,  either  to  qualify  or  add  to  the 
case  made  by  the  bill,  or  to  state  anew  case  on  his 
own  behalf,  next  follow  (3),  with  a  general  denial 

(d)     Peck    V.    Peck,    Mos.    45  ;  Barnes  v.  Saxby,  3  Swanst.  232,  n. 
Smii?i  V.  Reynolds,  Mos.  69  ;  Ord.         (e)  Moeely,  70  ;  1  Ball  &  B.  61  ; 

in   Cha.  25,  Ed.  Bea. ;    Corbett  v.  and  see  Lord  St.  John  v.  Lady  St. 

Tottenham,    1    Ball    &    Bea.    61;  JoAn.  11  Ves.  526. 

red  to  and  made  part  of  the  answer.  Repetitions  of  the  same  matters 
in  the  answer,  render  repetitions  impertinent  and  exceptionable;  Where 
the  same  exception  embraces  matter  which  is  pertinent  and  matter  im- 
pertinent, as  tlie  whole  cannot  be  sustained,  the  exception  must  be 
overruled.  When  part  of  the  answer  contains  a  part  not  material  to 
defendant's  defence,  but  therein  states  a  fact  which  might  be  material 
if  put  in  proper  furm,  but  is  so  mixed  up  with  irrelevant  and  imperti- 
nent matters  which  ought  not  to  have  been  stated  that  it  is  impossible 
to  separate  it  tlierefrom,  the  whole  exception  must  be  allowed.  Nor- 
tonv.Wood  and  another,  5  Paige's  R.  260,  264. 

(1)  See  note  to  p.  58,  supra. 

(2)  If  a  plaintiff  dies  before  an  answer  is  put  in,  and  the  defendant  Title  of  an  an- 

intitules  his  answer,  "The  answer  of to  tiie  original  bill  of piltiuiff^s  io-'^^ 

since  deceased,"  it  will  be  ordered  to  be  taken  oft' the  file  for  irregularity  •^*'^<'- 

in  the  title.     Upton  v.  Lou-ten,  10  Law  J.  (N.  S.)  222,  V.  C.  E. 

(3)  An  answer  must  not  set  up  two  alternative  inconsistent  defences.      Setting  up  in- 
Jesus  College,  Oxford  v.  Gibbs,  4  Law  J.  (N.  S.)  Ex.  42.  fences* 


875  ANSWERS.  [Chap.  II. 

of  that  combination  which  is  usually  charged  in  a 
bill  (/).  It  is  the  universal  practice  to  add  by 
way  of  conclusion  a  general  traverse  or  denial  of 
all  the  matters  in  the  bill.  This  is  said  (g)  to 
have  obtained  when  the  practice  was  for  the  defen- 
dant merely  to  set  forth  his  case,  without  answer- 
ing every  clause  in  the  bill.  Though,  perhaps, 
rather  impertinent  if  the  bill  is  otherwise  fully  an- 
swered, and  it  has  been  determined  to  be   in  that 

(/)  See  above,  p.  43  (1).  (g)  2  P.  Wms.  87. 

Answer  of  a      Where  a  mere  stakeholder,  in  his  answer,  submits  that  the  plaintiff 
a  a  e  o   er.        j^.  ^^^  entitled  to  the  relief  prayed,  and  that  the  bill  ought  to  be  dis- 
missed with  costs,  he  thereby  interferes  more  than  is  necessary ;  and, 
therefore,  if  the  plaintiff  gets  a  decree  in  his  favor  against  the  princi- 
pal defendant,  there  will  be  a  decree  as  to  the  shareholder,  with  costs. 
Whereas,  if  he  only  submits  in  his  answer  that  the  bill  ought  to  be 
dismissed  as  against  himself  merely,  with  costs,  no  costs  will  l»e  given 
as  against  him.     Osbnldiston  v.  Simpson,  13  Sim.  513. 
Answer  of  new       Where  new  trustees  of  a  charity,  appointed  after  the  old  trustees 
cree  against  the  have  put  in  their  answer  to  an  information,  but  before  the  decree,  are 
old  trustees.        j^^j,  jjj^jg  parlies  to  the  cause  ;  and  after  the  decree,  a  supplemental 
information  is  filed  against  such  new  trustees,  they  are  not  so  bound 
by  the  decree  as  to  be  precluded  from  making  a  case  by  way  of  de- 
fence to  the  suit,  for  they  come  in  under  the  founder,  and  not  under  the 
trustees  for  whom  they  were  substituted,  and  they  could  have  made  a 
separate  defence,  had  they  been  made  parties  to  the  suit,  as  they  ought 
to  have  been,  before  the  decree.     Atl.  Gen.  v.  Foster,  2  Hare,  81. 
Answer  to  an      ^  "^^  master  and  usher  of  a  school  are  not  so  bound  by  a  decree 
original  infor-     against  their  predecessors,  as  to  be  precluded  from  stating  new  matters 
nature  of  a  sup-  in  auswer  to  an  original  information  in  the  nature  of  a  supplemental  one, 
against  a  new'    to  show  that  the  decree  ought  not  to  be  carried  into  effect  against  them  ; 
^^of*a  sclfooi^'^'  ^'°''  '•'^^y  ^°  "°*  come  in  by  any  sort  of  privity  with  their  predecessors ;  and 
although  the  decree  in  the  original  cause  may  be  right  with  reference 
to  the  things  alleged  and  proved  in  that  cause,  yet  there   may  be  cir- 
cumstances showing  that  it  would  not  be  right  to  prosecute  it  against 
the  new  officers.     Att.  Gen.  v.  Foster,  13  Sim.  282. 

(i)  [A  defendant  cannot  avail  himself  of  matter  of  defence  which 
appears  only  upon  his  evidence  and  was  not  stated  in  his  answer. 
Stanly  v.  Robinson,  1  Russ.  &  M.  627.] 


S.  II.  p.  III.]  ANSWERS.  375 

case  unnecessary  (Ji),  it  is  still  continued  in  prac- 
tice (1).  In  the  case  of  an  infant  (2)  the  answer 
is  expressed  to  be  made  by  his  guardian  {g) ;  and  376 

the  general  saving  at  the  beginning,  together  with 
the  denial  of  combination,  and  the  traverse  at  the 
conclusion,  common  to  all  other  answers,  are  omit- 
ted. For  an  infant  is  entitled  to  the  benefit  of  every 
exception  which  can  be  taken  to  a  bill,  without  ex- 
pressly making  it;  he  is  considered  as  incapable  [^15] 
of  the  combination  charged  in  the  bill ;  and  his 
answer  cannot  be  excepted  to  for  insufficiency  (Ji). 
The  answer  of  an  idiot  or  lunatic  is  expressed  to 
be  made  by  his  committee  as  his  guardian,  or  by 
the  person  appointed  his  guardian  by  the  court  to 
defend  the  suit  (i).  An  answer  must  be  signed 
by  counsel  (k),  unless  taken  by  commissioners  in 
the  country  under  the  authority  of  a  commission 
issued  for  the  purpose ;  in  which  case  the  signature 

(Ji)  2  P.  Wms.  87.  the  attorney-general    cannot  be  ex- 

{g)  See  above,  p.  124.  cepted  to.     Davison  v.  Att.  Gen.  Ex- 

(h)   Copeland  v.  Wheeler,  4  Bro.  chequer,  30  June,  1813. 

C.  C.  256  ;  Lucas  v.  Lucas,  13  Ves.  (i)  See  above,  p.  124. 

274 ;  1  Ball  &  B.  553.     It  has  been  {k)  2  Ves.  &  B.  358. 

determined  also,  that  the  answer  of 

(1)  The  general  traverse  is  constantly  omitted  by  some  draftsmen 
of  the  present  day.  [The  general  denial  of  all  the  matters  of  the  bill 
not  before  answered,  with  which  an  answer  usually  concludes,  is  suffi- 
cient as  a  pleading  to  put  the  several  matters  of  the  bill  in  issue. 
Chancellor  Walworth,  in  Stafford  v.  Broton,  4  Paige's  G.  R.  88 ;  and 
see  Storms  v.  Storms,  1  Edwards'  V.  C.  R.  358. 

(2)  In  order  to  enable  an  infant  defendant  to  enter  into  evidence  in  infant's  answer, 
support  of  facts,  he  should  state  them  in  his  answer,  instead  of  putting 

in  the  common  answer  of  an  infant,  if  those  facts  would  not  otherwise 
be  in  issue  in  the  cause.  But  whatever  admissions  he  may  make,  or 
whatever  points  may  be  tendered  in  issue  in  his  answer,  tiie  plaintiff  is 
not  in  any  degree  exonerated  from  proving,  as  against  the  infant,  the 
whole  case  upon  which  he  relies.     Holden  v.  Hearn,  1  Beav.  445. 

31 


376  ANSWERS.  [Chap.  II. 

by  counsel  is  not  required  (I),  the  commissioners 
being  responsible  for  the  propriety  of  its  contents, 
as  it  is  supposed  to  be  taken  by  them  from  the 
mouth  of  the  defendant,  which  in  fact  was  formerly 
done  (in), 
^^wer^'"'^  °^  ^-  If  ^  plaintiff  conceives  an  answer  to  be  insuf- 
ficient to  the  charges  contained  in  the  bill  he  may 
take  exceptions  to  it,  stating  such  parts  of  the  bill 
as  he  conceives  are  not  answered,  and  praying 
that  the  defendant  may  in  such  respects  put  in  a 
full  answer  to  the  bill  (n)  (1).     These  exceptions 

(Z)  3  Atk.  440.  437,  and  the  cases  there  referred  to, 

(m)  See Broicnv.Brwce, 2 Meriv.l.     in  note;  Hodgson  v.  Butterfield,  2 
(n)  See  Marsh  v.  Hunter,  3  Madd.     Sim.  &  Stu.  236. 

(1)  [Exceptions  to  an  answer  cannot  be  sustained,  unless  there  is 
some  material  allegation,  charge  or  interrogatory  contained  in  the  bill, 
which  has  not  been  fully  answered.  And  where  new  matter,  not  re- 
sponsive to  the  bill,  is  stated  in  the  answer,  if  such  new  matter  is 
wholly  irrelevant,  and  forms  no  sufficient  ground  of  defence,  the  com- 
plainant may  except  to  the  answer  for  impertinence,  or  may  raise  the 
objection  at  the  hearing.  This  extract  is  taken  from  the  opinion  of 
Chancellor  VS'^alworth,  in  the  case  of  Stafford  vf^Brown,  4  Paige's  R. 
88  ;  and  his  honor,  in  that  opinion,  still  further  shows,  by  referring  to 
Mitford,  315,  Cooper's  PI.  319, 1  Newland's  P.  269,  and  Lube's  Equity 
PI.  87,  how  the  exception  must  have  reference  to  some  part  of  the  bill. 
Although  it  may  not  be  necessary,  in  the  exceptions,  to  state  the 
precise  words  of  the  allegation,  chai'ge  or  interrogatory  in  the  bill  which 
is  not  fully  answered,  yet  the  substance,  at  least,  must  be  stated:  so 
that,  by  reference  to  the  bill  alone,  in  connection  with  the  exception  the 
court  may  see  that  the  particular  matters  as  to  which  a  further  answer 
is  sought  are  stated  in  the  bill,  or  that  such  answer  is  called  for  by  the 
interrogatories.  Per  Ch.  Walworth,  in  the  same  case,  referring  to 
Hodgson  V.  Butterfield.  2  Sim.  &  Stu.  236.  Material  and  necessary 
matter  must  be  explicitly  met  in  an  answer:  but  exceptions, founded 
upon  verbal  criticism,  slight  defect  and  omission  of  immaterial  matter, 
will  be  invariably  disallowed  and  treated  as  vexatious.  Bogart  v. 
Henry,  1  Edwards'  V.  C.  R.  7.  See  a  reference  to  the  New- York 
Rules  which  relate  exceptions,  in  note  at  page  308,  ante.'] 

Exceptions  to  report  wiil  be  overruled  with  costs,  if  any  of  the 


S.  11.  p.  III.]  ANSWERS.  877 

must  be  signed  by  counsel  (n),  and  are  then  deli- 
vered to  the  proper  officer,  which  must  be  done 

(n)    Candler    v.    Partington,    6     Madd.  102 ;  Fa<c.9  v. //arrfy,  1  Jac 
R.  223 


exceptions  allowed  by  the  master  were  well  taken.  But  where  excep- 
tions for  impertinenre  would  mutilate  the  an.-^wer  by  breaking  up  sen- 
tences or  clauses,  which  ought  to  stand  or  fall  together,  or  where  the 
allowance  of  an  exception  to  part  of  a  clause  or  sentence,  would 
wholly  change  the  meaning  of  what  remains  or  make  it  unintelligible, 
the  exceptions  are  to  be  disallowed.  Franklin  v.  Keeler,  4  Paige's  R. 
382,  383. 

Where  a  further  answer  is  called  for  by  exceptions,  if  defendant 
find  he  has  neglected  to  answer  any  thing  that  he  was  called  upon 
by  the  bill  to  discover,  he  may  in  answering  the  exceptions  make  his 
answer  perfect;  although  the  exceptions  do  not  cover  the  whole 
ground  upon  whicji  the  original  answer  might  have  been  objected  to 
for  insufficiency.  It  seems  also  that  he  may  in  such  further  answer 
set  up  any  new  matter  of  defence,  although  not  responsive  to  the  bill, 
which  has  arisen  since  the  filing  of  the  original  answer.  Alderman  v. 
Potter,  6  Paige's  R.  660.  558. 

Liberty  to  except  to  an  answer  for  insufficiency,  is  never  granted, 
where  an  answer  on  oath  is  waived  by  the  complainant's  bill.  McCor- 
mick  V.  Chamberlain,  1 1  Paige's  Ch.  R.  543. 

An  exception  to  an  answer  for  insufficiency  should  state  the  charges 
in  the  bill,  the  inteM»gatory  applicable  thereto,  to  which  the  answer 
is  responsive,  and  the  terms  of  the  answer,  verbatim,  so  that  the  court 
may  see  whether  it  is  sufficient  or  not.  Brooks  v.  Byam,  1  Story's  C. 
C.  R.  296. 

A  defendant  cannot  in  his  answer  to  the  bill  excuse  himself  from 
making  a  full  discovery  by  merely  denying  the  complainant's  title  to 
discovery  and  relief ;  as  the  complainant  is  entitled  to  a  discovery  of 
all  matters  which  will  be  essential  to  the  relief  claimed,  in  case  he 
should  succeed  in  showing  that  the  particular  defence  set  up  in  the 
answer  is  false  or  unfounded.  It  is  a  general  rule  of  pleading  in 
chancery,  that  the  defendant  cannot  by  answer  excuse  himself  from 
answ-ering  ;  and  tiiat  if  he  attempts  to  make  his  defence  by  answer, 
instead  of  by  plea  or  demurrer,  he  must  answer  the  whole  of  tlie  state- 
ments and  charges  contained  in  the  bill,  and  all  the  interrogatories 
properly  founded  upon  them,  so  far  as  they  are  necessary  to  enable  the 
complainant  to  have  a  complete  decree  in  case  he  suceeeds  in  the 
suit.  To  this  general  rule  there  are  a  few  well  established  exceptions. 
Bank  of  Utica  v.  Messereau,!  Paige's  Ch.  R.  517. 


377  ANSWERS.  [Chap.  II. 

within  a  limited  time,  according  to  the  course  of 
[316]  the  court  (o),  though  upon  appUcation  further  time 
is  allowed  for  the  purpose,  within  certain  restric- 
tions {2^)'  If  the  defendant  conceives  his  answer 
to  be  sufficient,  or  for  any  other  reason  does  not 
submit  to  answer  the  matters  contained  in  the  ex- 
ceptions, one  of  the  masters  of  the  court  is  direct- 
ed to  look  into  the  bill,  the  answer  and  the  excep- 
tions, and  to  certify  whether  the  answer  is  sufficient 
in  the  points  excepted  to  or  not  {q).  If  the  mas- 
ter reports  the  answer  insufficient  in  any  of  the 
points  excepted  to,  the  defendant  must  answer 
again  to  thosfe  parts  of  the  bill  in  which  the  mas- 
ter conceives  the  answer  to  be  insufficient;  unless  by 
excepting  to  the  master's  report  he  brings  the  mat- 
ter before  the  court,  and  there  obtains  a  different 
judgment  (r)  (1).  But  if  the  defendant  has  insis- 
ted on  any  matter  as  a  reason  for  not  answering, 
though  he  does  not  except  to  the  master's  report, 
yet  he  is  not  absolutely  precluded  from  insisting  on 
[317]     the  same  matter  in  a  second  answer  (s),  and  ta- 

(0)  3Atk.  19;  Thomas  v.Llewel-  Coop.  R.  212;    Hirst   v.  Pierce,   4 

lyn,  6  Ves.  823.  Pri.  Ex.  R.  339  ;  Scott  v.  Mackintosh, 

(p)  Anon.  3  Atk.  19  ;  14  Ves.  536 ;  1  Ves.  &  B.  503  ;  Amhurst  v.  King, 

Baring  v.  Prinsep,  1  Madd.  526.  2  Sim.  &  Stii.  183. 

(5)  Ord.   in   Cha.    53,  Ed.    Bea. ;         (r)  Anon.  3  Atk.  235 ;  Hornby  y. 

Partridge  V.  Haycraft,  1\  Ves.  510;  Pemberton,  Mos.  57;    Worthington 

11  Ves.  577 ;  1  Ves.  &  B.  333.     As  v.  Foxhall,  3  Barnard,  261 ;  Finch  v. 

to  the  right  of  the  masters  to  exercise  Finch,  2  Ves.  491 ;  11  Ves.  577. 
a  discretion  with  regard  to  the  mate-         (s)  Finch  v.  Finch,  2  Ves.   491. 

riahty  of  interrogatories  not  answered.  See  Orey  v.  Leighton,  2  Sim.  &  Stii. 

see  Agar  v.  RegenVs  Canal  Camp.  236. 


(1)  As  to  the  conditions,  character  and  form  of  exceptions  to  mas- 
ter's report,  on  reference  for  any  purpose,  and  as  regarded  by  the  Su- 
preme Court  of  U.  S.jSee  Story  v.  Livingston,  13  Peters,  359. 


S.  II.  p.  III.]  ANSWERS.  378 

king  the  opinion  of  the  court  whether  he  ought  to 
be  compelled  to  answer  further  to  that  point  or 
not  (t).  ^ 

Where  a  defendant  pleads  or  demurs  to  any  part 
of  the  discovery  sought  by  a  bill,  and  answers  like- 
wise, if  the  plaintiff  takes  exceptions  to  the  answer 
before  the  plea  or  demurrer  has  been  argued,  he  ad- 
mits the  plea  (u)  or  demurrer  (x)  to  be  good  ;  for 
unless  he  admits  it  to  be  good  it  is  impossible  to 
determine  whether  the  answer  is  sufficient  or  not. 
But  if  the  plea  or  demurrer  is  only  to  the  relief 
prayed  by  the  bill,  and  not  to  any  part  of  the  dis- 
eovery,  the  plaintiff  may  take  exceptions  to  the 
answer  before  the  plea  or  demurrer  is  argued  (y). 
If  a  plea  or  demurrer  is  accompanied  by  an  answer 
to  any  part  of  the  bill,  even  a  denial  of  combination 
merely,  and  the  plea  or  demurrer  is  overruled, 
the  plaintiff  must  except  to  the  answer  as  insuffi- 
cient (z)  (2).  But  if  a  plea  or  demurrer  is  filed 
without  any  answer,  and  is  overruled,  the  plaintiff 

(<)  As  to  the  practice  in  case  the  (u)  See  Darnell  v.  Reyny,  1  Vern. 
defendant  should  put  in  successively    344. 

as  many  as  four  insufficient  answers,  {x)  See  Boyd  v.  Mills,  13  Ves.  85, 
see  Farquharson  v.  Balfour,  1  Turn.  (y)  3  P.  Wms.  327,  note  S.  See 
R.  184  (1).  however  2  Atk.  390. 

(2)   Cotes  V.  Turner,  Bunb.  123. 

(1)  When  the  court  have  once  ordered  the  respondents  to  answer 
more  fully  on  such  matters,  and  exceptions  are  taken  and  sustained 
again  to  omissions  or  evasions,  the  court  will  not  allow  the  answers  to 
be  amended  without  cost,  to  be  followed  by  harsher  measures,  if  the 
omissions  are  repeated.  Kitlridge  v.  Claremoni  Bank,  1  Minot  and 
Wood,  C.  C.  R.  244. 

(2)  Where  demurrer  is  accompanied  by  answer,  althougli  such  answer 
denies  combination  and  the  demurrer  is  overruled,  if  complainant  wants 
a  further  answer,  he  must  e.xcept  to  the  answer  for  insufficiency. 
Many  v.  Beekman  Iron  Co.,  9  Paige's  R.  196,  188. 


378  ANSWERS.  [Chap.  II. 

need  not  take  exceptions,  and  the  defendant  must 
answer  the  whole  bill  as  if  no  defence  had  been 
md!de  to  it  {a). 

379  A  further  answer  is  in  every  respect  similar  to, 
[318]     and  indeed  is  considered  as  forming  part  of,  the 

Further  answers   ^       ^  c^  .  l      l    i   'ii   • 

and  answers  to  iirst  auswcr.     feo  au  auswcr  to  an  amended  bill  is 

amended  bills. 

considered  as  part  of  the  answer  to^'the  original 
bill  (1)).  Therefore  if  the  defendant  in  a  further 
answer,  or  an  answer  to  an  amended  bill,  repeats 
anything  contained  in  a  former  answer  (c),  the  re- 
petition, unless  it  varies  the  defence  in  point  of  sub- 
stance, or  is  otherwise  necessary  or  expedient,  will 
be  considered  as  impertinent  (d)  ;  and  if  upon  re- 
ference to  a  master  such  parts  of  the  answer  are 
reported  to  be  impertinent,  they  will  be  struck  out 
as  such,  with  costs,  which  in  strictness  are  to  be 
paid  by  the  counsel  who  signed  the  answer  (e). 
Dieciaimers.  4.  A  defendant  may  disclaim  all  right  or  title  ta 

the  matter  in  demand  by  the  plaintiff's  bill,  or  by 
any  part  of  it  (/).  But  a  disclaimer  cannot  often 
be  put  in  alone.  For  if  the  defendant  has  been 
made  a  party. by  mistake,  having  at  the  time  no 
interest  in  the  matter  in  question,  yet  as  he  may 
have  had  an  interest  which  he  may  have  parted 

{a)  Ibid.     As  to  the  practice  with  see  Ovey  v.  Leighton,  2  Sim.  &  Stu. 

reference  to  the  obtaining  of  time  to  234. 

answer  in  such  a  case,  see  Trim  v.         (c)   S7nith  v.  Serle,  14  Ves.  415. 
Baker,  1  Sim.  &,  Stu.  469 ;  S.  C.  on         {d)  3  Atk.  303  (I). 
appeal,  1  Turn.  R.  253,  in  accordance         (e)  Ord.  in    Cha.  167,  Ed.  Bea. ; 

with  Jones  v.  Saxhy,  mentioned   1  16  Ves.  234. 

Swanst.  194,  note  (a),  and  overruling         (/)    See    Archhold    v.    Borrold, 

Griffith  V.  Wood,  1  Ves.  &  Bea.  541.  Gary  R.  69 ;  Seton  v.  Slade,  7  Ves. 

(6)  3  Atk.  303 ;  Dick.  583  ;  S^ur-  265. 
rier  v.  Fitzgerald,  6  Ves.  548 ;  and 

(1)  [Bennington  Iron  Co.  v.  Campbell,  2  Paige's  C.  K.  160.] 


380 


S.  II.  P.  III.]  ANSWERS.  379 

with,  the  plaintiff  may  require  an  answer  sufficient 
to  ascertain  whether  that  is  the  fact  or  not  ;  and, 
if  the  defendant  has  had  an  interest  which  he  has  [319] 
parted  with,  an  answer  may  be  also  necessary  to 
enable  the  plaintiff  to  make  the  proper  party,  in- 
stead of  the  defendant  disclaiming  (1).  The  form 
of  a  disclaimer  alone  seems  to  be  simply  an  asser- 
tion that  the  defendant  disclaims  all  right  and  title 
to  the  matter  in  demand,  and  in  some  instances, 


(1)  A  defendant  cannot  shelter  himself  from  the  necessity  of  put-  Necessity  of  a 
ting  in  a  full  answer,  by  disclaimer  of  all  interest  in  the  matters  in  the  accompanied  by 


suit,  where,  although  he  may  have  no  interest  but  may  have  assigned 
all  his  interest,  yet  he  is  accountable  to  the  plaintiff  or  to  a  co-defen- 
dant :  for  a  man  cannot  disclaim  his  liability.  Glassinglon  v.  Thwaites 
2  Russ.  458.  [And  a  defendant  cannot  gi  t  rid  of  the  effect  of  his 
disclaimer,  except  upon  a  distinct  application,  supported  by  affidavits 
establishing  special  ground.     Sidden  v.  Lediard.  \  Russ.  &.  M.  111.] 

On  application  by  complainant  to  take  defendant's  disclaimer  and 
answer  off  the  files,  it  was  held  that  defendant  by  disclaimer  cannot 
deprive  complainant  of  the  right  of  a  full  answer,  unless  it  is  evident 
defendant  ou^^ht  not  after  such  disclaimer  to  be  continued  a  party. 
When  complainant  is  entitled  to  answer,  and  defendant  puts  in  a  simple 
disclaimer,  the  only  remedy  is  to  move  to  take  the  disclaimer  off  the 
files,  exceptions  cannot  be  filed  to  it.  But  where  the  disclaimer  is  ac- 
companied by  an  insufficient  answer,  the  proper  course  appears  to  be 
to  except  to  the  answer  on  the  ground  of  iis  insufficiency.  If  a  corpo- 
ration is  made  a  party  to  a  suit  in  which  it  has  no  interest  and  ought 
not  to  have  been  made  a  party,  an  officer  of  the  corporation  who  has 
no  personal  interest,  and  is  not  charged  with  any  fraud  or  misconduct, 
cannot  be  compelled  to  answer  matters  as  to  which  he  is  a  mere  wit- 
ness.    Ellsworth  V.  Curds  el  al.,  10  Paige's  R.  107-8,  105. 

And  where  a  bill  seeks  to  compel  trustees  to  pay  a  fund  to  the  plain- 
tiff, and  prays  that  the  costs  of  the  suit  may  be  paid  by  other  defen- 
dants, on  the  ground  that  they  had  rendered  the  suit  necessary  by  set- 
ting up  a  claim  to  the  fund,  and  the  bill  contains  divers  allegations  in 
support  of  that  fact;  it  is  not  sufficient  for  them  to  put  in  what  they 
call  an  answer  and  disclaimer,  merely  stating  that  they  do  not  claim, 
and  never  claimed,  any  interest  in  the  fund  ;  for  they  must  answer 
every  allegation  which  goes  to  show  that  a  claim  was  set  up.  Gru' 
ham  V.  Coape,  3  My.  &.  C.  638. 


an  answer. 


380  ANSWERS.  [Chap.  II. 

from  the  nature  of  the  case,  this  may  perhaps  be 
sufficient ;  but  the  forms  given  in  the  books  of 
practice  are  all  of  an  answer  and  disclaimer  (1). 

If  the  defendant  disclaims,  the  court  will  in  gene- 
ral dismiss  the  bill  as  against  him  with  costs.  But 
it  has  been  said,  that  if  the  plaintiff  shows  a  proba- 
ble cause  for  exhibiting  the  bill,  he  may  pray  a  de- 
cree against  the  defendant,  upon  the  ground  of  the 
disclaimer  (h).  Where  the  defendant  disclaims, 
the  plaintiff  ought  not  to  reply  (?'). 

381  A  defendant  may  demur  to  one  part  of  a  bill, 

Making  different      ,         ,  ,  ,  i    t       i     • 

defences  to  the  plead  to  anothcr,  answer  to  another,  and  disclaim  as 

same  bill.  ■•■ 

to  another.  But  all  these  defences  must  clearly 
refer  to  separate  and  distinct  parts  of  the  bill.  For 
the  defendant  cannot  plead  to  that  part  to  which 
he  has  already  demurred  ;  neither  can  he  answer 
to  any  part  to  which  he  has  either  demurred  or 
pleaded  (k)  (2)  ;  the  demurrer  demanding  the 
judgment  of  the  court  whether  he  shall  make  any 
answer,  and  the  plea  whether  he  shall  make  any 
other  answer  than  what  is  contained  in  the  plea. 
[320]     Nor  can  the  defendant  by  answer  claim  what  by 

(h)  Prac.  Reg.  175,  Wy.  Ed.  Atk.  562. 

(i)  Prac.    Reg.  176,  Wy.  Ed.;   3         {k)  2  Bro.  Pari.  Ca.  20,  21. 

(1)  [Though  a  disclaimer  is  in  substance  distinct  from  an  answer, 
yet  it  generally  adopts  in  most  respects  the  formal  parts  of  an  answer 
the  words  of  course  preceding  and  concluding  an  answer  being  used  in 
a  disclaimer.     Cooper,  311.] 
*         (2)  See  note,  page  248,  supra. 

\Clark.v.  Phelps,  6  J.  C.  R.  214.  In  mortgage  cases,  within  the 
court  of  chancery  of  the  State  of  New-York,  where  a  defendant  has 
written  notice  of  the  suit  and  appears  and  disclaims,  he  shall  not  re- 
cover costs,  but  shall  pay  costs  to  the  complainant.  133d  Rule  ;  and 
in  connection,  see  Rule  132.] 


S.  II.  p.  III.] 


ANSWERS. 


381 


disclaimer  he  has  declared  he  has  no  right  to  (J). 
A  plea  (m)  or  answer  (n)  will  therefore  overrule  a 
demurrer,  and  an  answer  (o)  a  plea  (2)  ;  and  if  a 
disclaimer  and  answer  are  inconsistent,  the  matter 
will  be  taken  most  strongly  against  the  defendant 
upon  the  disclaimer. 


(I)  See  the  case  of  Seton  v.  Slade, 
7  Ves.  265. 

(m)  Dormer  v.  Fortescue,  2  Atk. 
282;  3  P.  Wms.  80,  81;  Arnold's 
case,  Gilb.  For.  Rom.  59. 

(«)  Abraham  v.  Dodgson,  2  Atk. 
157;  3  P.  Wms.  81;  Sherwood  v. 
Clack,  9  Pri.  Ex.  R.  259  (1). 


(o)  Pierce  v.  Johns,  Bunb.  11; 
Cottington  v.  Fletcher,  2  Atk.  155  ; 
3  P.  Wms.  81  ;  Dobbyn  v.  Barker, 
5  Bro.  P.  C.  573,  Toml.  Ed. ;  Earl 
of  Clanrickard  v.  Bourke,  6  Bro. 
P.  C.  4  Toml.  Ed. ;  1  Sim.  &  Stu. 
6;  Watkins  v.  Stone,  2  Sim.  &  Stu. 
560. 


(1)  [Bolton  V.  Gardner,  3  Paige's  C  R.  273.] 

(2)  See  note,  p.  248,  supra. 


382 


[321] 


CHAPTER  THE  THIRD. 

OF  REPLICATIONS  AND  THEIR  CONSEQUENCES. 


A  REPLICATION  is  the  plaintiff's  answer  or  reply  to 
the  defendant's  plea  or  answer.  Formerly,  if  the 
defendant  by  his  plea  or  answer  offered  new  mat- 
ter the  plaintiff  replied  specially  (a)  ;  otherwise  the 
replication  was  merely  a  general  denial  of  the  truth 
of  the  plea  or  answer,  and  of  the  sufficiency  of  the 
matter  alleged  in  it  to  bar  the  plaintiff's  suit,  and 
an  assertion  of  the  truth  and  sufficiency  of  the  bill. 
The  consequence  of  a  special  replication  was  a  re- 
joinder, by  which  the  defendant  asserted  the  truth 
and  sufficiency  of  his  answer,  and  traversed  every 
material  part  of  the  replication  (b).  If  the  parties 
were  not  then  at  issue. by  reason  of  some  new  mat- 
ter disclosed  in  the  rejoinder  which  required  an- 
swer, the  plaintiff  might  surrejoin  to  the  rejoinder, 
and  the  defendant  might  in  like  manner  ad-surre- 
join,  or  rebut,  to  the  surrejoinder  (c).  The  incon- 
venience, delay,  and  unnecessary  length  of  plead- 
[322]  ing,  arising  from  these  various  allegations  on  each 
side  (d)  occasioned  an  alteration  in  the  prac- 
tice.    Special    replications,  with  all  their  conse- 

(a)  Ord.  in  Ch.  70,  Ed.  Bea.  (c)  West.    Symb.    Cha.    195,    a.; 

(6)  2  West.  Sym.  Chan.  195,  a.     Prac.  Reg.  371,  Wy.  Ed. 
232,  b.  246,  b.  (d)  See  Ord.  in  Cha.  70,  Ed.  Bea. 


Chap.  III.]  replications.  383 

quences,  are  now  out  of  use  (e),  and  the  plaintiff 
is  to  be  relieved  according  to  the  form  of  the  bill, 
whatever  new  matters  may  have  been  introduced 
by  the  defendant's  plea  or  answer  (/).  But  if 
the  plaintiff  conceives,  from  any  matter  offered  by 
the  defendant's  plea  or  answer,  that  his  bill  is  not 
properly  adapted  to  his  case,  he  may  obtain  leave  {g) 
to  amend  the  bill  (A),  and  suit  it  to  his  case,  as  he 

(e)  Prac.  Reg.  372,  Wy.  Ed.  (1)         (/)  Prac  Reg.  372,  Wy.  Ed. 
Indeed   if    a  plaintiff  is  disposed  to         (g-)  See  1  Ves.  448. 
controvert  a  part  of  a  case  made  by         (h)  And  this  will  be  permitted  after 

the  defendant's  answer,  and  to  admit  replication  ;   and  leave  will  be  granted 

the  rest,  he  may  still  put  in  a  replica-  to  the  plaintiff  to  withdraw  the  repli- 

tion  so  far  special,  that  it  is  confined  cation  and  amend  the  bill  (2).     See 

to  the  particular  matter  controverted,  Pott  v.  Reynolds,  3  Atk.  565 ;  Pitt 

instead  of  being  a  general  denial  of  v.  Watts,  16  Ves.  126;  Cowdell  v. 

the  truth  of  the  whole  answer ;  and  Tatlack,  3  Ves.  &  B.  19  ;  Lord  Kil- 

then    the    defendant  is  put    only  to  courcy  v.  Ley,  4  Madd.  212. 
proof  of  the  matter  replied  to. 

-^ 

(1)  [Storms  V.  Storms,  Edwards'  V.  C.  Rep.  358.  No  special  re- 
plication allowed  to  be  filed  in  the  court  of  chancery  of  the  State  of 
New-York  without  leave  of  the  court  on  cause  shown.  65th  Rule.] 
So  by  rule  in  Massachusetts,  24  Pick.  R.  413,  and  in  U.  S.  Courts, 
Vaitier  v.  Hinde,  7  Peters'  R.  274,  252. 

A  general  replication  to  a  ploa  and  an  answer  in  support  of  it,  ad- 
mits the  sufficiency  of  the  plea  as  much  as  if  it  had  been  set  down  for 
argument  and  allowed ;  and  if  the  facts  relied  on  by  the  plea  be  proved, 
the  bill  will  on  hearing  be  dismissed,  of  course.  If  a  replication  be 
filed  inadvertently  the  court  will  permit  it  to  be  withdrawn,  Hughes  v. 
Blake,  6  Wheat.  453,  5  Cond.  Rep.  140,  136. 

On  replication  no  statement  in  the  answer  not  responsive  to  the  bill 
's  available  for  defendant  on  hearinif,  unless  established  by  proof. 
Wakeman  v.  Grover  et  al,  4  Paige's  R.  33,  23.  Affirmed,  11  Wend. 
R.  187. 

To  enable  either  party  to  take  proofs  on  the  fjupstion  of  usury,  the 
answer  should  aver  the  transaction  to  be  usurious.  An  alleiration  of 
defendant,  that  he  is  informed  and  believes  it  is  tainted  with  usury,  is 
not  sufficient  to  render  it  necessary  to  file  a  replication  to  that  answer. 
Suydam  v.  Bartle,  10  Paige  R.  97,  94. 

(2)  [But  it  will  not  be  permitted,  unless  the  complainant  shows  the 
materiality  of  the  amendments,  and  why  the  matter  proposed  as  an 
amendment  was  not  before  stated  in  the  bill.  Brown  v.  Rickets,  2 
J.  C.  R.  425.] 


383  REPLICATIONS.  [Chap.  III. 

shall  be  advised  (i).     To  this  amended  bill  the  de- 
[323]     fendant  may  make  such  defence  as  he  shall  think 
proper,  whether  required  by  the  plaintiff  to  answer 
it  or  not  (A:). 

384  According  to  the  present  course  of  the  court,  al- 
though rejoinders  are  disused,  yet  the  plaintiff,  af- 
ter replication,  must  serve  upon  the  defendant  a 
subpoena  requiring  him  to  appear  to  rejoin,  unless 
he  will  appear  gratis  (I)  (3).  The  effect  of  this 
process  is  merely  to  put  the  cause  completely  at 
issue  between  the  parties.  For  now,  immediately 
after  the  defendant  has  appeared  to  rejoin  gratis, 
or  after  the  return  of  a  subpoena  to  rejoin  served 
on  the  defendant,  and  which  by  order  obtained  of 
course  is  now  usually  made  returnable  immediate- 
ly, and  served   on  the  defendant's   clerk  in  court, 

(i)  As  to  the  extent  to  which  this  allowed,  without  leave  of  the  court, 

liberty  may  be  carried,  see  2  Sch.  Si,  Taylor  v.  Shaw,  2  Sim.  &  Stu.  12. 
Lefr.  9 ;  Seeley  v.  Boehm,  2  Madd.         (k)  The    original    bill  is  rendered 

R.  176;  Mazzaredo  v.  Maitland,  3  nugatory  by    amendment,  3    Madd. 

Madd.   66    (1).     As   to    the    couse-  429  ;  and  if  the  alteration  be  so  con- 

quence  of  making  an  entirely  new  siderable  as,  according  to  the  prac- 

case  by  the  amendment,  see  Mavor  tice  of  the  court,  to  make  it  necessa- 

V.  Dry,  2  Sim.  &  Stu.  113  (2).     And  ry  that  a  new  ingrossment  should  be 

as  to  the   adding   or  striking   out  a  filed  as  of  record,  counsel's  signature 

prayer  for  relief,  see  Butterworih  v.  must  be  afiixed  thereto.     Kirkley  v. 

Bailey,  15  Ves.  358 ;  Earl  of  Choi-  Burton,  5  Madd.  278 ;    Webster  v 

mondeley  v.  Lord  Clinton,  2  Ves.  &  Threlfall,  1  Sim.  '&.  Stu.  135  ;  Pitt 

B.  113.     But  it  may  be  observed  that  v.  Macklew,  1  Sim.  &  Stu.  136,  n. 
the  plaintiff  may  not  amend  his  bill         (Z)  Anon.  Mos.  123,  296;  Flower 

after  plea  to  part    thereof  has  been  v.  Herbert,  Dick,  349. 

(1)  [Lyon  V.  Tallmadge,  1  J.  C.  R.  184;  Livingston  v.  Gibbons,  4 
ib.  94;  Thorn  v.  Germond,  ib.  363;  Beekman  v.  Waters,  3  ib.  410; 
Shepherd  v.  Merrill,  ib.  423;  Remoick  v.  Wilson,  6  ib.  81.] 

(2)  [Also  Pratt  v.  Bacon,  10  Pickering's  R.  123.] 

(3)  By  the  93d  order  of  May,  1845,  no  subpoena  to  rejoin  is  to  be 
issued,  but  upon  the  filing. of  the  replication  therein  prescribed,  the 
cause  is  to  be  completely  at  issue. 


S.  II.  p.  III.]  REPLICATIONS.  884 

the  parties  may  proceed  to  the  examination  of  wit- 
nesses to  support  the  facts  alleged  by  the  pleadings 
on  each  side  (m).  Where  by  mistake  a  replication 
has  not  been  filed,  and  yet  witnesses  have  been 
examined,  the  court  has  permitted  the  replication 
to  be  filed  nunc  pro  tunc  {li). 

(jn)  Mosely,  296;  Prac.  Reg.371,  novo.     See  Berks  v.  Wigan,  1  Ves. 

Wy.  Ed.     It  may  be    noticed    that  &,  B.  221 ;  Brickwood  y.  Miller,  1 

leave  will  in  some  instances  be  given  Meriy.  4. 

to  withdraw  a  rejoinder  and  rejoin  de  (n)  Rodney  v.  Hare,  Mosely,  296. 


385 


[324]  CHAPTER  THE  FOURTH. 

OF  INCIDENTS  TO  PLEADINGS  IN  GENERAL. 


Amendment  of 
bill  before  the 
hearing. 


In  the  preceding  chapters  have  been  consider- 
ed the  nature  of  the  pleadings  used  in  the  equita- 
ble jurisdiction  of  the  court  of  chancery,  and  the 
manner  in  which  they  are  brought  to  a  termination. 
Before  the  proceedings  arrive  at  that  point  the 
court  will  frequently  permit  the  pleadings  filed  to 
be  altered,  as  the  purposes  of  parties  may  re- 
quire («)  (1),  except  in  the  case  of  answers  put  in 

(a)  As  to  the  amendment  of  bills,  v.  Leadbeater,  13  Ves,  230;  Merre- 

see  above,  pp.  67,  383  ;  of  demurrers,  wether    v.    Mellish,    13   Ves.    435  ; 

Gleggv.Legh,  4  M&dd.  208;  Thorpe  Wood   v.  Strickland,  2   Ves.  &  B. 

V.   Macaulay,   5    Madd.    218;    and  150  ;  Thompson  v.  Wild,  5  M&dd.  82. 

above,  p.  253  ;  and  of  pleeis,  Dobson  [Jackson  v.  Rowe,  4  Russ.  588.] 

Q)  Th^  principle  of  the  New-York  Revised  Statutes  directing  that 
mistakes  of  day,  month  and  year  in  pleading  or  record,  which  could 
be  amended  by  the  court  after  verdict,  shall  be  disregarded  on  trial, 
unless  it  surprise  or  mislead  the  adverse  party,  and  prevent  his  prepa- 
ration for  a  full  answer  on  the  merits  and  which  it  has  been  decided, 
applies  to  a  mistake  in  setting  out  the  deed  or  instrument  which  is  the 
foundation  of  the  suit,  applies  to  a  court  of  chancery,  though  it  is  not 
in  terms  extended  to  this  court.  Therefore,  if  the  party  could  not 
Jiave  been  misled  by  a  mistake  in  the  date,  the  bill  should  not  be  dis- 
missed, or  defence  rejected  bj  reason  of  a  mere  clerical  rriistake  of  this 
kind,  where  -«pon  the  face  of  the  record,  the  variance  will  not  render 
complainant's  claim  to  relief,  or  defendant's  defence  bad  in  substance. 
It  was  so  held  on  appeal  from  a  vice-chancellor,  from  a  decree  of  fore- 
closure,  that  if  the  party  (appellant)  apprehend  danger  of  liability  a 


Chap.  IV.]       incidents  to  pleadings.  385 

upon  oath,  in  which  the  court,  for  obvious  reasons, 

will  not  easily  suffer  any  change  to  be  made  (h).  386 

(b)  A  special  application  is  neces-  Wharton,    Dick.    84  ;    Patterson  v. 

sary  for  the  purpose,  4  Madd.  27,  and  Slaughter,    Ambl.    292;    and  cases 

the  court  will  not  as  formerly,  (see  3  cited,   1   Ves.   &   B.  150,  note  (a); 

Barn.  51 ;  2  Eq.  Ca.  Ab.  60  ;  Whar-  10    Ves.  285,  401);    give    leave   to  ■ 

ton  V.  Wharton,  2  Atk.  294;  Dagley  amend  the  answer  itself  (1),  except 

V.    Crump,   Dick.   35;    Bedford   v.  in  the  case  of  an  infant  defendant. 


second  time  for  the  note  or  mortgage,  he  may  have  the  original  bill  on 
file  \vhich  is  to  constitute  a  part  of  the  enrolled  decree  amended  so  as 
to  conform  to  the  true  date,  if  it  is  not  already  right  in  this  respect. 
And  that  would  have  been  allowed  by  the  vice-chancellor,  as  a  matter 
of  coufs-e  at  the  hearing,  if  defendant  or  counsel  had  asked  for  it.  It 
therefo:e  forms  no  ground  for  reversal  upon  the  appeal,  for  the  answer 
shows  that  defendant  could  not  have  be'en  misled  by  the  clerical  mis- 
take in  substituting,  in  this  case,  April  for  August.  Ontario  Bank  v. 
Schermerhorn,  10  Paige's  R.  111-112,  109. 

Where  a  plaintiff  amends  his  bill,  after  answer,  in  such  a  manner  Amended  bill  in- 
that  the  case  made  or  the  relief  asked  by  the  bill  is  totally  inconsistent  the  original  bill, 
with  the  case  made  or  the  relief  asked  by  the  original  bill,  the  bill  is 
demurrable  :  as  where  the  original  bill  prays  that  a  bond  may  be  de- 
livered up  to  be  cancelled,  on  the  ground  of  its  having  been  satisfied, 
while  the  amended  bill  prays  that  an  account  may  be  taken  of  what  is 
due  upon  the  bond.     Cresy  v.  Beavan,  13  Sim.  354. 

(1)  The  practice  of  amending  the  answer  of  a  defendant,  which 
prevailed  previously  to  the  time  of  Lord  Thurlow,  has  been  discontinued 
in  this  country  as  well  as  in  England.  The  modern  practice  is,  on  a 
proper  case,  to  permit  defendant  to  file  a  supplemental  answer,  thus 
giving  complainant  the  benefit  of  the  original  answer  with  the  expla- 
nations or  denials  in  the  supplemental  answer.  Where  such  permission 
is  given  after  proofs,  it  is  proper  to  allow  the  te.-'timony  taken  to  be  used 
at  hearing  witiiout  re-examination  to  save  facts  ;  giving  parties  op- 
portunity for  further  proof  as  to  the  new  matters  put  in  i.-^sue  by  the 
supplemental  answer.  A  defendant  who  is  allowed  a  supplemental 
answer  to  correct  a  mistake  in  his  original — should  pay  the  extra  costs 
of  adverse  party  consequent  from  his  neglect  to  put  in  a  proper  answer. 
Where  defendant  by  mistake  or  under  misapprehension  of  his  rights, 
or  of  the  facts  in  the  case  makps  an  admission  in  his  answer  incon- 
sistent with  the  truth,  the  court  will  permit  him  to  file  supplemental 
answer,  correcting  the  niistake,  to  enable  him  to  produce  proofs  to  show 
that  the  fact  is  otherwise  than  so  admitted  by  him.  But  the  court  will 
not  permit  such  supplemental  answer  to  be  filed  unless  it  is  evident 


387  INCIDENTS  TO  PLEADINGS.         [ChAP.  IV. 

[325]     After   the  examination  of   witnesses  no  part  of 

Savage  v.  Carroll,  1  Ball  &  B.  clerical  error  (1),  {Griffiths  v.  Woody 
548,)    and   except  in  cases  of  mere     11    Ves.  62;    Peacock    v.  Duke   of 

there  has  been  a  mistake  in  the  original-  answer,  and  that  the  general 
justice  and  equity  of  the  case  require  a  supplemental  answer.  Hughes 
V.  Bloomer,  9  Paige's  R.  371,269. 

(1)  Courts  of  equity  are  very  indulgent  in  allowing  amendments  of 
answers  in  matters  of  form,  mistake  of  dates,  or  verbal  inaccuracies. 
But  for  amendments  in  material  facts,  or  to  change  essentially  the 
grounds  taken  in  tlie  original  answer,  the  court  are  exceedingly  re- 
luctant, and  require  very  cogent  circumstances,  and  such  as  repel  the 
r  notion  of  any  attempt  of  the  party  to  evade  the  justice  of  the  case,  or 

to  set  up  new  and  ingeniously  contrived  defeuces  or  subterfuges. 
When  the  object  is  to  introduce  new  facts  wholly  dependent  on  parol, 
the  reluctance  of  the  court  is  greatly  increased,  as  it  encourages  care- 
lessness, and  leaves  room  for  manufactured  evidence.  Not  so  where 
documents  are  omitted  by  mistake  or  accident.  These  cannot  speak 
a  different  language.  It  rests  in  discretion,  and  the  court  may  grant 
leave  to  file  an  amended  answer  when  the  purposes  of  substantial  jus- 
tice require  it.  But  it  should  appear  that  the  facts  to  be  added  are 
highly  probable,  material,  that  party  has  not  been  guilty  of  gross  neg- 
ligence, and  that  the  mistakes  and  facts  have  been  discovered  since 
the  original  answer  was  sworn  to.  Smith  v.  Babcock,  3  Sumner's  R. 
(Mass.)  585-6,  583. 

Where  new  matters  of  defence  are  discovered  after  answer,  but  ex- 
isted before,  defendant  should  apply  for  leave  to  file  a  supplemental  an- 
swer, instead  of  resorting  to  a  cross  bill  only.  Such  matters,  it  seems, 
cannot  be  set  up  in  the  cross  bill.  Talmage  v.  Pell  et  al.,  9  Paige's 
R.  412,  413,  410. 

Leave  will  be  given  to  file  a  supplemental  answer  to  correct  a  plain 
answer  to  cor-  mistake  in  the  original  answer.     White  v.  Sayer,  5  Sim.  566. 

And  a  supplemental  answer  will  be  allowed  to  be  filed  to  state  that 
a  passage  was  hastily  inserted  by  mistake  in  the  answer  after  it  was 
engrossed,  where  the  application  is  supported  by  an  afiidavit  as  to  the 
mistake,  and  not  opposed  by  a  counter  affidavit.  Swallow  v.  Day,  2 
Coll.  Ch.  133. 

And  leave  will  be  given  to  file  a  supplemental  answer,  even  after 
the  cause  is  in  the  paper  for  hearing,  in  order  to  correct  a  date,  where 
the  defendant  states  that  he  was  obliged  to  insert  the  date  in  the 
former  answer  from  memory,  and  the  correction  will  have  the  effect  of 
creating  a  good  defence  to  the  bill.  Fulton  v.  Gilmour  or  Gilmore,  8 
Beav.  154  ;  1  Phil.  522.     See  also  Bell  v.  Dunwore,  7  Beav.  283. 

Leave  will  also  be  given  to  file  a  supplemental  answer  to  correct  a 


rect  a  mistake. 


Chap.  IV.]     incidents  to  pleadings.  387 

the  pleadings  (c),  can  be  altered  or  added  to,  but 

Bedford,  1  Ves.  &  B.  18C ;  White  v.  lege,  8  Vee.  79  ;  10  Ves.  285  ;  19  Ves. 

Godhold,  1  Ma.dd.R.269;  Faircloth  584;    Curling  v.   Marquis    Towns- 

V.  Webb,  5  Madd.  73,  but  see  Ridley  hend,  19  Ves.  G28 ;  Strange  v.  Col- 

V.  Obee,  Wightw.  32.)  but,  upon  its  lins,  2  Ves.  &,  B.  163 ;  Edwards  v. 

conscience  being   satisfied    that  the  M'Leay,  2  Ves.  &  B.  256 ;  4  Madd. 

defendant  ought  not  to  be  concluded  407,)  as  a  mode  by  which  justice  may 

by  the    answer  as  upon  record,  (10  be  more  surely  administered,  19  Ves- 

Ves.  401  ;  4  Madd.  27  ;  and  see  Ten-  631. 

nant  v.  Wilsmore,  2  Anstr.  362,)  if         (c)    As    to    bills,    see    Wright    v. 

the  matter  already  brougiit  forward  Howard,  6  Madd.  106,  and  above,  p. 

be  ambiguously  stated,  and  it  appear  67.     Where  no  witness  has  been  ex- 

that  the  defendant   meant  to  swear  amined,   an    amendment    has   been 

to  it  in  the   sense    which   he   seeks  permitted    after    publication    passed- 

upon  hia  application  to  put   upon  it,  Hastings  v.  Gregory,  in  the  Excheq 

(i/cese^/ V.  TVfZson,  1  Ves.  &  B.  149,)  19th  Nov.  1782;    1  Fowl.    Excheq] 

or  if  it  be  desired  to  introduce  new  Pr.  127 ;  Sanderson  v.  Thwaites,  in 

matter  (1),  and  it  appear  that  the  de-  Chan.  Trin.  1782.     With  respect  to 

fendant,  at  the  time  of  putting  in  the  answers,  see  Chute  v.  Lady  Dacres, 

original  answer,  was  not  aware  there-  2    Freem.    172;    Mullins   v.    Sim- 

of,  {Wells  V.  Wood,  10  Ves.  401,)  it  monds,    Bunb.    186;    Kingscote    v. 

will   permit  a  supplemental    answer  Bainsby,    Dick.    485  ;     Tennant   v. 

to  be  filed,  {Jennings  v.  Merton  Col-  Wilsmore,  Anstr.  362. 

mistake  upon  a  particular  point,  where  the  defendant,  in  his  answer, 
has  spoken  as  to  his  belief  only,  with  regard  to  the  point,  and  where 
the  application  for  leave  is  supported  by  an  affidavit  that  he  has  since 
been  more  correctly  informed.     Frankland  v.  Overend,  9  Sim.  365. 

And  where  a  defendant  by  his  answer  pleads  a  modus  for  all  tithes, 
and  afterwards  moves  to  file  a  supplemental  answer  stating  that  he 
had  since  discovered  that  the  modus  covered  part  only  of  the  tithes, 
the  court  will  order  the  cause  to  proceed  as  if  the  modus  had  been 
laid  in  the  manner  proposed.     Podmore  v.  Skipiviih,  2  Sim.  565. 

But  where  a  bill  is  filed  against  a  solicitor  for  negligence  in  re- 
spect to  a  deed,  and  by  his  answer  he  admits  that  the  firm  to  which 
lie  belonged  were  paid  for  drawing  the  deed,  and  that  the  bill  of 
cos's  is  in  his  possession;  lie  will  not  be  allowed  to  file  a  supple- 
mental answer,  denying  those  admissions,  and  stating  that  he  had 
since  discovered,  on  examining  his  books,  that  the  deed  was  drawn 
by  his  deceased  partner  gratuitously.  Greenwool  v.  Atkinson,  4 
Sim.  54. 

(1)  Leave  will  be  oiven   to    a    defendant,  before    publication  has 
passed,  to  file  a  supplemental  answer    to    state    information  he  has  answer  to  intro- 
received  subsequently  to  the  filing  of  his  original  answer.     Farmer  ter. 
V.  Farmer,  6  Jur.  72,  V.  C.  E. 

32 


388  INCIDENTS  TO  PLEADINGS.       [ChAP.  IV. 

under  very  special  circumstances  (1),  or  in  conse- 
quence of  some  subsequent  event,  except,  that  if 
the  plaintiff  at  any  time  discovers  that  he  has  not 
made  proper  parties  to  his  bill,  he  may  obtain  leave 
to  amend  his  bill  for  the  special  purpose  of  adding 
the  necessary  piarties  (d)  (2)  ;  and  leave  has  also 

{d)  Anon.  2  Atk.l5;  Goodwin  v.  Cur.  Cane.  546;  see  above,  pp.  67, 
Goodwin,  3  Atk.  370 ;  1  Prax.  Aim.     383. 

So  leave  will  be  given,  after  replication,  to  file  a  supplemental 
answer  to  a  bill  for  dower,  in  order  to  state  a  fine  and  non-claim 
which  have  been  omitted  to  be  stated  in  the  original  answer,  through, 
ignorance  of  the  levying  of  the  fine.     Jackson  v.  Parish,  1  Sim.  505. 

And  where  a  plaintiff"  claims  a  share  of  an  intestate's  estate  un- 
der the  statute  of  distributions,  and  tlie  defendant,  after  filing  his 
answer,  discovers  that  the  intestate  was  domiciled  in  a  foreign  coun- 
try, leave  will  be  given  to  file  a  supplemental  answer  for  the  purpose 
of  stating  that  fiat.     Tidswell  v.  Boyer,  7  Sim.  64. 

But  after  a  decree  nisi  in  a  tithe  suit,  the  defendant  will  not  be 
allowed  to  file  a  supplemental  answer,  setting  up  a  modus  founded 
on  evidence  with  which  the  defendant  has  subsequently  become  ac- 
quainted, even  though  the  defendant  offers  to  indemnify  the  plaintifi' 
as  to  any  extra  costs  occasioned  by  setting  up  a  new  defence  ;  for, 
in  such  case,  it  is  impossible  to  put  the  plaintiff  in  the  same  situation 
as  he  would  have  been  in  if  this  defence  had  been  stated  on  the 
record  in  due  time.     M^Dougal  v.  Furrier,  4  Russ.  486. 

(1)  See  supra,  pp.  74  and  75,  and  notes. 

Where  at  the  time  of  amending  his  bill,  a  plaintiff"  has  changed 
his  residence,  it  should  be  stated  by  amendment ;  for  the  rule  that 
subsequent  facts  are  the  proper  subject  of  a  suppfemental  bill,  and 
not  of  amendment,  does  not  apply  to  a  mere  change  of  residence. 
Kerr  v.  Gilkspie,  7  Beav.  269, 

By  answering  an  amended  bill  a  defendant  does  not  preclude  him- 
self from  the  right  of  objecting  at  the  hearing  to  matter  originally 
introduced  into  the  bill  by  amendment,  where  he  takes  the  objection 
by  his  answer,  and  reserves  to  himself  the  same  benefit  of  it  as  if  he 
had  pleaded  it  in  bar.     Milligdn  v.  Mitchell,  1  My.  &-  C.  433. 

(2)  An  order  to  amend  as  the  plaintiffs  may  be  advised,  dues  not  au- 
thorize the  striking  out  of  the  names  of  co-plaintiffs.  Sloggpll  v. 
Collins,  13  Sim.  456.  [But  an  amendment  by  adding  a  party  com- 
plainant is  not  a  matter  of  course.  Lucton  School  v.  Scarlet,  \S- 
Price5l.] 


Chap.  IV.]      incidents  to  pleadings.  388 


been  given  to  amend  the  prayer  under  particular 
circumstances  (<?).  If  any  event  happens  which 
ahers  the  interest  of  any  party,  or  gives  any  new 
interest  to  any  person  not  a  party,  the  plaintiff  may  \. 
file  a  supplemental  bill,  or  bill  of  revivor,  as  the 
occasion  may  require.  And  if  the  plaintiff  thinks 
some  discovery  from  the  defendant,  which  he  has 
not  obtained,  is  necessary  to  support  his  case,  he 
may  file  a  supplemental  bill  to  obtain  that  disco- 
very (  f ).  He  may  also  file  a  supplemental  bill  to 
put  in  issue  any  matter  necessary  to  his  case  when 
he  cannot  obtain  permission  to  alter  his  original 
bill  by  amendment  (1)  ;  but  he  cannot  upon  such  a 
supplemental  bill  examine  witnesses  to  any  matter 
in  issue  by  the  original  bill  {g). 

If  upon  hearing  the  cause  the  plaintiff  appears 
entitled  to  relief,  but  the  case  made  by  the  bill  is 
insufficient  to  ground  a  complete  decree,  the  court 
will  sometimes  give  the  plaintiff  leave  to  file  a  sup- 
plemental bill,  to  bring  the  necessary  matter,  in  ad- 

(c)  Cook    V.  Martin,  2    Atk.  2;  Atk.371;  Usborne  v.  Baker,  2  Madd. 

Harding  v.  Cox,  3  Alk.  583  ;  Palk  R.  379. 
V.  Lord  Clinton,  \2  Ves.  Jun.  48.  (g)   Bagenal    v.    Bagenal,  G  Bro. 

(/)    Boeve   \.  Skipworth,  2   Ch.  P.  C.  81,  Toml.  Ed. 
Rep.  142 ;    Goodwin  v.  Goodwin,  3 


389 
[326] 

Supplemental 
bill  or  bill  of  re- 
ivor. 


(1)  See  supra,  p.  74  &  75,  and  notes.  But  where  pending  suit 
and  after  answor,  and  pending  accounts  before  master,  a  release  was 
given — and  introduced  in  proof  without  exception,  one  party  contend- 
ing it  was  by  duress,  the  otlier  that  it  was  voluntary  ;  it  was  held  that 
no  cross-bill  or  supplemental  answer  was  necessary  to  bring  it  before 
the  court.  There  is  no  propriety  in  requiring  technical  and  formal 
proceedings,  when  they  tend  to  embarrass  and  delay  the  administra- 
tion of  ju.stice ;  unless  they  arc  reriuired  by  eome  fixed  principles  of 
equity,  law  or  practice,  which  the  court  would  nvl  be  at  libLrty  to  disr 
regard.  Kelsey  cj-  M'lnlyre  v.  Hobby  i\-  Bond,  16  l\teit,  277-8, 
269. 


389  INCIDENTS  TO  PLEADINGS.         [ChaP.  IV. 

dition  to  the  case  made  by  the  original  bill,  before 
he"rij''°*  °"  the  court  (h).  If  the  addition  of  parties  only  is 
wanted  (i),  an  order  is  usually  made  for  the  cause 
to  stand  over,  with  liberty  to  amend  the  bill  by  ad- 
ding the  proper  parties  (1)  ;  and  in  some  cases 
890  where  a  matter  has  not  been  put  in  issue  by  a  bill 

[327]  with  sufficient  precision,. the  court  has,  upon  hear- 
ing the  cause,  given  the  plaintiff  liberty  to  amend 
the  bill  for  the  purpose  of  making  the  necessary 
alteration  (k)  (2). 

Amendment  inrni  ^  •!•  •     r       ^  --ii 

the  case  of  an  1  hc  court  cousidemig  miants  as  particularly 
under  its  protection  will  not  permit  an  infant  plain- 
tiff to  be  injured  by  the  manner  in  which  his  bill 
has  been  framed.  Therefore,  where  a  bill  filed  on 
behalf  of  an  infant  submitted  to  pay  off  a  mortgage, 
and  upon  hearing  the  cause  the  court  was  of  opin- 
ion that  the  infant  was  not  bound  to  pay  the  mort- 

(h)  3  Atk.  133.  of  neglect  to  amend  within  a  reason- 

(i)  See  above,  pp.  67,  383.  able  time,  see  Cax  v.  Allingham,3 

{k)  Filkin  v.  Hill,  4  Bro.  P.  C.  640,  Madd.  393.  (3) 
Toml.  Ed.     As  to  the  practice  in  case 


infant. 


(1)  Under  an  order  made  on  the  hearing,  that  the  cause  should 
biii™by  addins  stand  over,  and  that  the  plaintiff-;  should  be  at  liberty  to  amend  their 
co-^lamtiffs  and  biH  for  the  purpose  of  adding  parties,  as  the\f  might  be  advised,  or  of 
the  hearing.        showing  why  they  Were  unable  to  bring  all  proper  parties  before  the 

court,  the  plaintiffs  are  not  entitled  to  add  parties  as  co-plaintiffs,  and 
introduce  new  matter  explaining  the  interests  of  such  new  co-plaintiffs  ; 
because  the  plaintiffs  would  thereby  be  substituting  a  new  record  ;  so 
that  if  the  witnesses  swore  falsely,  and  their  depositions  were  read,  they 
could  not  be  indicted  for  perjury,  because  they  would  be  depositions  in  a 
cause  of  which  the  record  no  longer  existed.  .  Milligan  v.  Mitchell,  1 
My.  &Cr.  433. 

(2)  [Where  there  is  a  clear  mistake  in  an  answer,  which  is  proper  to 
be  corrected,  the  practice  is  to  permit  the  defendant  to  file  an  additional 
or  supplemental  answer.  But  this  is  allowed  with  great  caution  ;  and 
only  where  there  is  a  mistake,  properly  speaking,  in  a  matter  of  fact. 
Bowen  v.  Cross,  4  J.  C.  R.  375.]     See  supra,  pp.  385-7,  notes. 

(2)  [Also  Franklin  v.  Beamish,  1  Hogan  72.] 


Chap.  IV.]       incidents  to  pleadings.  390 

gage,  it  was  ordered  that  the  bill  should  be  amend- 
ed by  striking  out  the  submission  (/).  And  where 
a  matter  has  not  been  put  by  the  bill  properly  in 
issue,  to  the  prejudice  of  the  infant,  the  court  has 
generally  ordered  the  bill  to  be  amended  (m). 

A  like  indulgence  has  been  granted  to  a  defen-  jigwers™^"' °^ 
dant  when  upon  hearing  a  cause  it  has  appeared 
that  he  has  not  put  in  issue  by  his  answer  facts  391 

which  he  ought  to  have  put  in  issue,  and  which 
must  necessarily  be  in  issue  to  enable  the  court  to 
determine  the  merits  of  the  case,  the  defendant 
being  permitted  to  amend  his  answer  by  stating 
those  facts.  This  has  formerly  been  done  in  the 
exchequer,  where  a  modus  has  been  set  up  as  a 
defence  to  a  bill  for  tithes  ;  and  it  appeared  from 
the  evidence  in  the  cause  that  there  was  probably 
a  good  ground  for  opposing  the  plaintiff's  claim, 
though  the  defendant  had  mistaken  it,  and  the 
court  permitted  him  to  amend  his  answer  {n)  ;  but  [328] 
this  has  been  refused  in  other  cases.  Where  an 
answer  has  been  prejudical  to  a  defendant  from  a 
mere  mistake,  upon  evidence  of  the  mistake  an 
amendment  has  been  permitted  (o).  This  indul- 
gence has  been  extended,  after  much  consideration, 
beyond  mere  mistake,  where  by  the  answer  an 
important  fact  was  imperfectly  put  in  issue,  and  no 
witness  had  been  examined,  the  cause  being  heard 

(/)   1  p.  Wms.  428.  (1)  chequer,    Easter,    1779.       See    also 

(m)  See  p.  38;    Napier  v.  Lady  Filkin  v.    Hill,  4    Bro.   P.  C.  640, 

Effingham,  3    P.  Wm8.    401,403.  Toinl.  Ed. ;  2  Anstr.  443. 

And  see  Bennet  v.  Lee,  2  Atk.  529.  (o)  Countess  of  Gainsborough  v. 

(n)    Phillips    V.     Gwynne,    Ex-  Gifford,  2  P.  Wms.  424. 

(3)  Franklin  v.  Beamish,  supra. 


391  INCIDENTS  TO  PLEADINGS.         [ChAP.  IV. 

on  bill  and  answer  {p)-  In  general,  however,  this 
indulgence  is  confined  to  mere  mistake  or  sur- 
prise ((j)  (1).     A  distinction  has  also  been  made 

392  between  the  admission  of  a  fact,  and  the  admis- 

{j))  Powell  V.  Hill,  in  Chan.     The  was    affirmed,    19th    March,    1735, 

cause  came  first  before  the  Master  of  MS.  n. ;   Countess  of  Gainsborough 

the  Rolls,  who  made  an  order,  giving  v.  Gifford,  (since  reported  2  P.  Wms. 

liberty  to  the  plaintiff  to  amend  the  424,)  cited  as  determined  on  several 

bill,  and  to  the  defendant  to  amend  precedents.     But  see  Sorrell  v.  Car- 

the  answer,  to  which    the   plaintiff  penter,  2  P.  Wms.  482. 

might   reply  and    go   to   issue.     On  (q)  2  Bro.  C.  C.  619.     See  Chute 

appeal  to  the    Chancellor   the  order  v.  Lady  Dacres,  2  Freem.  173- 


(1)  [Amendments  will  not  be  granted  to  enable  a  party  to  set  up 
the  defence  of  usury  or  of  the  statute  of  limitations,  if  he  has  not 
availed  himself  of  the  opportunity  to  interpose  such  defence  in  the  first 
instance.  It  seema,  however,  that  where  such  defences  are  defectively 
set  forth,  an  amendment  will  be  allowed  to  give  the  party  the  benefit  of 
the  defence  which  he  intended  to  present,  but  he  will  not  be  permitted 
to  put  in  a  new  or  additional  plea  or  answer.  Beach  v.  Fulton  Bank 
on  appeal,  3  Wendell's  R.  573  ;  S.  C.  1  Paige's  C.  R.  429.]  See  pp. 
385,  386, supra. 

In  matters  of  form  or  mistakes  of  dates,  or  verbal  inaccuracies, 
courts  of  equity  are  very  indulgent  in  allowing  amendments  of  answers. 
But  they  are  slow  to  allow  amendments  in  material  facts,  or  to  change 
essentially  the  grounds  taken  in  the  original  answer.  The  whole 
matter  is  in  the  discretion  of.  the  court;  but  before  the  amendments  to 
the  answer  are  allowed,  the  court  should  be  satisfied  that  the  reasons 
assigned  for  the  application  are  cogent  and  satisfactory  ;  that  the  mis- 
takes to  be  corrected  or  the  facts  to  be  added,  are  made  highly  proba- 
ble, if  not  certain  ;  that  they  are  material  to  the  merits  of  the  case  in 
controversy  ;  that  the  party  has  not  been  guilty  of  gross  negligence  ; 
and  that  the  mistakes  have  been  ascertained,  and  the  new  facts 
have  come  to  the  knowledge  of  the  party,  since  the  original  answer 
was  put  in  and  sworn  to.     Wiggin  v.  Dorr,  3  Sumner's  C.  C.  R.  410. 

Where  a  party,  by  a  slip,  has  lost  the  opportunity  to  set  up  a  mere 
technical  or  unconscientious  defence,  and  comes  to  the  court  for  a  favor, 
which  it  is  necessary  should  be  granted  to  enable  him  to  set  up  such  a 
defence,  the  court  of  chancery  will  require  him  to  do  equity,  as  a  con- 
dition of  granting  the  favor  asked.  Hartson  v.  Davenport,  2  Barb.  Ch. 
Reps.  77. 


Chap.  IV.]       incidents  to  pleadings.  392 

sion  of  a  consequence  in  law  or  in  equity  (r). 
Where  a  defendant  after  putting  in  an  answer  dis- 
covered a  ground  of  defence  to  a  bill  of  which  he 
was  not  before  informed,  a  purchase  by  the  person 
under  whom  he  claimed  without  notice  of  the 
plaintiff's  tide,  which  could  only  be  used  by  way 
of  .defence,  and  could  not  be  the  ground  of  a  bill 
of  review,  the  court  allowed  the  answer  to  be  taken  [329] 
off  the  file,  and  the  new  matter  to  be  added,  and 
the  answer  re-sworn  (s).  Where  a  fact  which 
may  be  of  advantage  to  a  defendant  has  happened 
subsequent  to  his  answer,  it  cannot  with  propriety 
be  put  in  issue  by  amending  his  answer.  If  this 
appears  to  the  court  on  the  hearing,  the  proper  way 
seems  to  be  to  order  the  cause  to  stand  over  till  a 
new  bill  in  which  the  fact  can  be  put  in  issue  be 
brought  to  a  hearing  with  the  original  suit  (t) ;  and 
a  bill  for  this  purpose  seems  to  be  in  the  nature  of 
a  plea  puis  darrein  continuance  at  the  common 
law  (1). 

Sometimes,  upon  hearing  of  a  cause,  it  has  ap-  r^„^ti^;t"r"aL'd 
peared  that  a  matter  properly  in  issue,  or  at  least  ?ion^afte7fc 
stated  in  the   proceedings,  has   not  been  proved  '"° 
against  parties  who  have  admitted  it  by  their  an- 
swers, although  not  competent  so  to  do  for  the 
purpose  of  enabling  the  court  to  pronounce  a  de- 
cree.    In  these  cases  the  court  has  permitted  the  393 
proper  steps  to  be  taken  to  obtain  the  necessary 

(r)  See    Pearce  v.  Grove,  3  Atk.  and    filing    a    supplemental     answer 

522 ;  and  jS.  C.  Ambl.  65,  but  very  instead  of  amending  and  reswearing 

differently  stated.  the    original    answer,  see    abov;»,   p 

(s)  Patterson  v.  Slaughter,  Ambl.  386,  note  (ft). 
292.     As  to  amending   an   answer,        («)  i/aynev.  Hayne.SCh.  Rep.  19.  , 


(1)  See  supra,  pp.  99,  n.,  75,  n. 


393  INCIDENTS  TO  PLEADINGS.         [CnAP.  IV. 

proof;  and  for  this  purpose  has  suffered  interroga- 
tories to  be  exhibited  (u)  ;  and  where  the  plaintiff 
has  neglected  to  file  a  necessary  replication,  has 
allowed  him  to  supply  the  defect  (x).  Thus,  where 
a  bill  was  filed  on  behalf  of  creditors,  for  satisfac- 
[330]  tion  out  of  real  and  personal  estates  devised  to 
trustees  for  that  purpose,  and,  subject  to  that  charge, 
in  strict  settlement,  and  the  answers  of  the  tenant 
for  life,  and  of  the  first  remainder-man  in  tail,  who 
was  an  infant,  were  not  replied  to,  the  court,  on 
hearing,  directed  that  the  plaintiff  should  be  at 
liberty  to  reply  to  those  answers,  and  exhibit  inter- 
rogatories, r.nd  prove  their  debts  against  those  de- 
fendants, as  they  had  before  proved  them  against 
the  trustees  ;  and  reserved  the  consideration  of  the 
directions  necessary  to  be  given  upon  such  new 
proof  (2/).. 

In  most  of  these  cases  the  indulgence  given  by 
the  court  is  allowed  to  the  mistakes  of  parties,  and 
with  a  view  to  save  expense.  But  when  injury 
may  arise  to  others  the  indulgence  has  been  more 
rarely  granted  ;  and  so  far  as  the  pendency  of  a 
suit  can  affect  either  the  parties  to  it,  or  strangers, 
matter  brought  into  a  bill  by  amendment  will  not 
have  relation  to  the  time  of  filing  the  original  bill, 
but  the  suit  will  so  far  be  considered  as  pendent 

394  only  from  the  time  of  the  amendment  (z),  except 
that  where  a  bill  seeks  a  discovery  from  a  defen- 
dant, and  having  obtained  that  discovery,  the  bill  is 

(m)   See  2  P.  Wms.  463;  and  see     De  Bernales,lRuss.R.30l  ;  Abrams 
3  P..Wms.  289 ;  Smith  v.  Althus,  11     v.  Winshup,  1  Russ.  R.  526. 
Ves.  564;   Willan  v.  Willan,  19  Ves.         (ar)  See  above,  p.  384. 
*  590;  5'.  C.  Coop.  R.  291  ;  Swinford         (y)  Lambert   v.  Ashcroft,  at  the 

V.  Home,  5    Madd.  379;    Moons  v.     Rolls,  18th  Feb.  1779. 

(z)  2  Atk.  218. 


Relation  of  mat- 
ters introduced 
by  amendment. 


Chap.  IV.]        incidents  to  pleadings.  394 

amended  by  stating  the  result,  it  should  seem  that 
the  suit  may,  according  to  circumstances,  be  con- 
sidered as  pendent  from  the  filing  of  the  original  bill 
at  least  as  to  that  defendant,  and  perhaps  to  the 
other  parties,  if  any,  and  to  strangers  also,  so  far 
as  the  original  bill  may  have  stated  matter  which 
might  include  in  general  terms  the  subject  of  the  [331] 
amendment. 

Though  in  general  with  respect  to  the  original  [^J'ameic^el" 
parties,  and  their  interests,  no  amendment  will  be 
permitted  after  the  cause  is  at  issue,  and  witnesses 
have  been  examined,  and  publication  passed  {y)  ; 
yet  a  plaintiff  has  been  permitted  under  such  cir- 
cumstances, to  amend  his  bill  by  adding  a  prayer  Exceptions. 
omitted  by  mistake  (z)  (1).  Even  upon  the  hear- 
ing, as  already  noticed  {a),  the  court  having  the 
whole  case  before  it,  and  being  embarrassed  in  its 
decision  by  defects  in  the  pleadings,  has  permitted  895 

amendments  both  of  bills  {h)  and  answers  (c),  un- 

(y)  J/jon.  Barn.  222  ;  2Anstr.  362.  be  remarked,  that  an  amendment  of 
And  see  above,  pp.  386,  387,  and  the  bill  will  be  permitted  after  a  de- 
note. It  may  be  observed,  that  in  murrer  or  a  plea  has  been  filed,  but 
such  a  case  the  plaintiff  must  gene-  generally  not  after  it  has  been  set 
rally  apply  to  the  court  for  liberty  to  down  to  be  argued.  Anon.  Mos.  301 ; 
withdraw  his  replication,  as  well  as  Vernon  v.  Cue,  Dick.  358 ;  1  Ves. 
to  amend  his  bill.  1  Atk.  51  ;  Mot-  Jun.  448;  Carleton  v.  L' Estrange,  1 
teux  V.  Mackreth,  1  Ves.  Jun.  142 ;  Turn.  R.  23. 

1  Turn.  R.  24 ;  see  above,  cases  cited,         (6)  See  above  pp.  67,  389,  390. 
p.  67,  note  ;  and  p.  383,  notes  (j)  and         (c)  See  Countess  of  Gainsborough 

(k).  V.  Gifford,  2  P.  Wms.  424 ;  1  Cox  R. 

(z)  Harding  v.  Cox,  3  Atk.  583.  159.     See  above,  p.  390.  (2) 

(a)  Pp.  389-391.     And  here  it  may 


(1)  The  court  may,  for  the  purpose  of  avoiding  unnecessary  delays, 
entertain  a  motion  to  amend  a  bill  in  equity,  at  the  same  time  that  excep- 
tions thereto  are  filed,  and  may  require  the  defendants  to  answer  the 
amended  matter  and  the  exceptions  together.  Kellridge  v.  The 
ClaremorU  Bank,  3  Story's  C.  C.  Reps.  59. 

(2)  VViien  a  fact  occurs  during  the  pendency  of  a  suit  in  chancery. 


895  INCIDENTS  TO  PLEADINGS.         [ChAP.  IV. 


frZte?o'rbm  der  very  special  circumstances.  Where  new  mat- 
bii/of"that°na-  tcr  has  been  discovered  by  either  plaintiff  or  de- 
a defect.  fcttdant  beforc  a  decree  has  been  pronounced  de- 

ciding on  the  rights  of  the  parties,  a  supplemental 
or  cross-bill  has  been  permitted,  to  bring  such  mat- 
ter before  the  court  to  answer  the  purposes  of  jus- 
tice, instead  of  allowing  an  amendment  of  a  bill 
[332]  or  answer,  where  the  nature  of  the  matter  discov- 
ered would  admit  of  its  being  so  brought  before 
the  court ;  and  after  a  decree,  upon  a  similar  dis- 
covery, a  bill  of  review,  or  a  bill  in  nature  of  a  bill 
of  review,  has  been  allowed  for  the  same  purpose, 
both  those  forms  of  proceeding  being  in  their  na- 
ture similar  to  amendnients  of  bills  or  answers,  cal- 
culated for  the  same  purposes,  and  generally  ad- 

mit^neVmau^r  mittod  uudcr  similar  restrictions  (1).  It  may  how- 
to  be  put  in  is-  ,  i  i  -i  •         i  i  • 

a«e.  ever  happen  that  by  the  mistake,  or  negligence,  or 

ignorance  of  parties,  their  rights  may  be  so  preju- 

which  it  is  deemed  material  to  have  considered  in  deciding  the  case, 
leave  must  be  obtained  by  the  complainant,  if  it  be  on  his  part,  to  with- 
draw his  traverse,  and  amend  his  bill,  or  file  a  supplemental  bill ;  or  by 
the  defendant,  if  on  his  part,  to  file  a  cross  bill,  in  order  to  bring  the  new 
matter  within  the  issue,  that  testimony  may  be  taken  on  both  sides  if 
desired.     Blaisdell  v.  Stevens  et  al,  16  Vermont  Rep.  186. 

A  complainant  will  not  be  allowed  to  amend  his  bill  so  as  to  make  a 
new  case,  after  the  proofs  in  the  cause  have  been  taken  and  closed 
Dodd  V.  Astor,  2  Barb.  Cii.  R.  395. 

Where  no  occurrence  has  taken  place  to  change  the  rights  of  the 
parties  subsequent  to  the  commencement  of  the  suit,  the  complainant 
cannot,  after  the  cause  is  at  issue,  file  a  supplemental  bill  for  the  mere 
purpose  of  putting  in  issue  new  matters  which  might  have  been  intro- 
»  duced  into  the  original  bill  by  way  of  amendment,  although  the  new 

facts  were  not  known  to  the  complainant  until  after  the  causi  was  at 
issue  on  the  original  bill.  The  proper  course  for  the  comp'ainarit, 
where  the  proofs  have  not  yet  been  taken,  is  to  apply  for  leave  to  with- 
draw his  replication  and  amend.     Diasv.  Merle,  4  Paige's  Ch.  R.  269. 

(1)  See  supra,  pp.  99,  n.,  75,  n.,  389,  n. 


Chap.  IV.]       incidents  to  pleadings.  395 

diced  by  their  pleadings  that  the  court  cannot  per- 
mit important  matter  to  be  put  in  issue  by  any  new 
proceeding  without  so  much  hazard  of  inconveni- 
ence, that  it  may  be  better  that  the  individual 
should  suffer  an  injury  than  that  the  administration 
of  justice  should  be  endangered  by  allowing  such 
proceeding. 


397 


NOTE  ON  PARTIES  * 

COMPRISING    THE    DECISIONS    FROM    THE    BEGINNING    OF  THE 
YEAR    1826. 

The  decisions  on  the  subject  of  Parties  which  have  been 
reported  from  the  beginning  of  the  year  1826  down  to  the 
present  time  are  very  numerous.  The  editor  conceives  that 
be  shall  most  consult  the  convenience  of  the  profession,  by  ar- 
ranging them  into  classes  and  subdivisions  under  the  following 
titlest : — 

I.  Of  Parties  generally. 
II.  Of  Parties  out  of  the  Jurisdiction. 

III.  Of  Misjoinder  of  Parties  as  Co-plaintiffs. 

IV.  Of  Parties  to  Suits  of  a  Public  Nature. 

V.  Of  Parties  to  Suits  for  an  Account  and  to  Admi- 
nistration Suits. 
VI.  Of  Parties  to  Suits  pertaining  to  the  relation 

of  Assignor  and  Assignee. 
VII.  Of  Parties  to  Suits  affecting  Persons  hating  a 

Community  of  Interest. 
VIII.  Of  Parties  to  CopyrigJit  Suits. 
IX.  Of  Parties  to  Suits  pertaining  to  the  relation 

OF  Debtor  and  Creditor. 
X.  Of  Parties  to  Suits  in  respect  of  Actual  or  Con- 
structive Fraud. 
XI.  Of  Parties  to  Suits  pertaining  to  the  relation 

of  Husband  and  Wife. 
XII.  Of  Parties  to  Suits  for  Legacies. 

XIII.  Of  Parties  to  Suits  pertaining  to  the  relation 

of  Mortgagor  and  Mortgagee. 

XIV.  Of  Parties  to  Partnership  Suits. 

*  The  text  on  Parties  occurs  supra,  pp.  190 — 208,  and  325 — 327.  (S«e 
also  Calvert  on  Parties  in  Equity  ;  Edwards  on  do. ;  Story's  Eq.  Pi.  C.  IV. 

+  The  titles,  after  the  first  four,  are  arranged  in  the  alphabetical  order  of 
the  leading  words  therein. 


397  NOTE  ON  PARTIES.  [S.  I. 

XV.  Of  Parties  to  Suits  by  or  against  Tenants  in  Com- 
mon OP  Real  or  Personal  Estate. 
XVI.  Of  Parties  to  TitJie  Slits. 
XVII.  Of  Parties  to  Suits  pertaining  to  the  relation 
of  Trustee  and  Cestui  Que  Trust. 
XVIII.  Of  Parties  to  Suits  between  Vendor  and  Purchaser. 


oqo  I.  Parties,  generally*(1). 

L   Pabtiks, 
oKNER^i^   ^        "  A  bill  may  be  demurred  to  for  want  of  parties,  if  any  part 

of  the  relief  prayed  is  such  that  it  cannot  be  granted  in  the 

absence  of  a  person  who  is   not  made   a  part  to    the   bill." 

Ledbetter  v.  Long,  4  My.  &  C.  286. 

*  As  to  making  a  decree,  saving  the  rights  of  absent  parties,  see  the  49th 
order  of  August,  1841,  and  practice  cases  thereon  stated  in  Miller's  Orders, 
p.  159. 

(1)  General  rule.  It  has  been  found  difficult,  and  it  may  be  imprac- 
ticable, to  adopt  one  concise  general  rule  comprehending  every  case. 
Perhaps  the  nearest  approach  to  it,  might  be  this  :  Those  nominally,  in 
law  interested  ia  the  subject  and  object  of  the  suit,  may,  those  mate- 
rially, should,  and  those  essential  to  a  decree,  must,  be  made  parties. 

Though  the  first  class,  may,  they  ought  not  when  the  real  parties  in 
interest  can  be  brought  before  the  court ;  those  who  should,  need  not, 
when  they  cannot  from  absence,  number  or  other  inconvenience,  be 
brought  in,  and  a  decree  can  be  made  without  them ;  but  those,  without 
whom  no  decree  can  be  made  as  between  the  parties  before  the  court, 
are  indetpensable. 

1.  Those  who  may.  The  multiplication  of  parties  having  no  interest 
at  stake,  should  be  avoided  as  tending  to  expense  and  embarrassment. 
There  may  be  proper  but  not  necessary  parties, — such  as  assignor  abso- 
lute of  a  judgment,  {Bruen  v.  Crane  et  al.  1  Greenes  C.  R.  348  347  ;) 
mortgagor  who  has  parted  with  liis  equity  of  redemption,  or  all  interest 
inthe  hnd,  (Vreeland  V.  Loubat.  /Jem,  104,  348.  Chester  v.  King.  Id. 
405).  But  legatees  who  have  assigned  their  interest,  need  not  and 
ought  not  to  be  made  parties  to  bill  by  assignee  for  the  legacies ;  their 
whole  interest  having  vested  by  the  assignment.  The  ground  for  making 
assignor  of  a  common  law  right  or  chose  in  action  party,  is  that  he  has  a 
distinct  right  that  cannot  be  assigned  and  cannot  be  extinguished  but 
by  a  decree.  But  where  the  reason  does  not  apply,  the  rule  ceases. 
{King  V.  Berry's  Executors,  2  Green's  C.  R.,  N.  J.,  51—54,  44.) 

In  New-York  the  suit  is  brought  in  name  of  real  parties  in  interest^ 


S.  I.]  NOTE  ON  PARTIES.  398 

Where  a  suit  is  instituted  to  set  aside  a  decree  in  a  prior  General  admia- 

r  istrator,  laasult 

as  the  assignee  of  a  chose  in  action  is  not  permitted  to  file  a  bill  in  the 
name  of  a  mere  nominal  party.  (Rogers  et  al.  v.  The  Tradesmen's 
Ins.  Co.  el  al,  6  Paige's  R.  598,  683  ;  Field  v.  Maghee,  5  Paige's  R. 
539.)  The  real  persons  in  interest  must  be  parties,  except  in  certain 
cases  where  complainant  represents  the  rights  of  those  for  whom  the 
suit  is  brought  both  legally  and  equitably,  as  executors,  trustees,  or  as- 
signees under  insolvent  acts  ;  and  where  complainant  after  suit  brought 
assigns  his  interest  under  the  insolvent  laws,  the  suit  abates  or  becomes 
so  defective  that  the  suit  cannot  proceed  against  defendant  if  he  object' 
or  if  complainant  has  so  assigned  his  property  and  obtained  a  discharge 
under  the  act,  the  assignee  must  be  party  before  the  suit  can  proceed. 
If  defendant's  interest  in  the  subject  of  the  suit  becomes  vested  in  others 
pendente  lite,  without  an  actual  abatement  of  the  suit,  complainant  is 
not  bound  to,  but  may,  make  the  assignee  a  party.  For  the  assignee 
being  a  mere  voluntary  purcliaser  pendente  lite,  cannot  defeat  or  delay 
complainant ;  if  he  could  the  suit  by  successive  assignmemts  would  be 
interminable.  But  where  the  assignment  is  by  operation  of  laws  as  un- 
der the  bankrupt  or  insolvent  laws,  he  has  a  right  to  be  heard  and  must 
be  mwde  a  party.  (See  further  Sedgwick  v.  Cleveland,  7  Paige's  R. 
289,  290-1,  287,  and  Mills  v.  Hoag,  Idem,  21,  20,  18.) 

No  one  wed  be  (1  Gall.  382-3,)  nor,  in  general,  shouldhe,  (2  Green's 
C.  R.  122-3,  120,)  a  party  against  whom  if  brought  to  a  hearing,  no 
decree  can  be  had.  This,  it  has  been  said,  is  a  general  rule  operating 
as  an  exception  to  the  general  rule  that  all  interested  should  be  par- 
ties. Therefore  on  a  bill  by  creditors  or  purchasers  against  the  as- 
signee of  a  bankrupt,  it  seems  now  settled  that  the  bankrupt  himself 
need  not  be  made  a  party,  though  it  was  formerly  otherwise.  There- 
fore when  bill  is  brought  to  charge  executors  of  deceased  partner  having 
assets  with  a  joint  debt  which,  at  law,  survived  against  surviving  part- 
ners who  were  certificated  insolvents,  these  need  not  be  made  parties. 
In  cases  where  suit  is  against  executors  on  other  grounds,  it  seems 
clear  that  the  rule  that  all  surviving  co-obligors  should  be  parties,  in 
general,  prevails.  Shall  it  be  permitted  to  prevail  where  no  relief  can 
be  given  against  the  co-obligors  ?  Shall  a  certificated  bankrupt,  who 
is  a  surviving  partner,  be  joined  with  the  executors,  although  no  remedy 
can  be  effectually  had  in  the  suit  against  him?  No  case  is  discovered 
(say  the  court)  where  relief  has  been  sought  against  the  representa- 
tives of  ^  deceased  partner  on  the  ground  of  bankruptcy  of  the  sur- 
viving partner,  that  the  bankrupt  himself  or  his  assignees  have  been 
made  parties.  The  bill,  if  the  reports  are  to  be  relied  on,  has  been 
uniformly  against  the  representativee  alone.  {Reimsdyk  v.  Kane  et  al. 
1  Gallison's  R.  383-4,  371.)  So,  on  bill  for  surplus  or  residuum  after 
payment  of  debts,  legacies  and  prior  incumbrances,  those  claimants 


398  NOTE  ON  PARTIES.  [S.  I. 

to  set  aside  a  de-  suit   a  peison  who  took  a  benefit  under  such  prior  suit  is  not 

cree  in  a  prior  '  r 

suit.  

need  not  be  parties  ;  but  all  interested  even  remotely  in  the  residuum, 
must.     (Vanderpool  v.  DevenporCs  Ex^r,  2  Green's  C.  R.  122-3,  120.) 

2.  Those  who  should.  The  rule  as  stated  and  illustrated  in  King  v. 
Berry's  Ex^rs,  2  Green's  C.  R.  52,  53,  44,  is,  that  all  persons  legally 
or  beneficially  interested  in  the  subject  m;^tter  and  result  of  a  suit 
must  be  parlies.  And  in  other  cases,  the. rule  is  stated  that  all  mate- 
rially interested,  must  be  parties;  (Caldwell  v.  Taggarl  et  al.,  4 
Peters,  190  ;  The  Mechanics^  Bank  of  Alexandria  v.  Selon,  1  Id.  306.;) 
and  until  brought  in,  no  final  decree,  (Marshall  v.  Beverley.  5  Wheat. 
313,  4  Cond.  R.  660  ;)  nor  interlocutory  which  in  great  measure  decides 
the  merits,  can  pass.  (Conn  v.  Penn,  5  Wheat.  424  ;  4  Cond,  R.  716.) 
In  Williams  v.  Russell,  19  Pick.  R.  (Mass.)  165,  162,  the  court  say, 
the  rule  as  well  settled  is,  that  all  persons  interested  in  the  subject 
matter  of  a  suit  are  to  be  made  parties,  but  to  this  rule,  as  Lord  Redes- 
dale  observes,  there  are  many  exceptions.  In  Wiser  v.  Blackly,  1 
Johns.  C.  R.  438,  Chancellor  Kent  observed ;  "  the  general  rule  is, 
you  must  have  before  the  court  all  whose  interests  the  decree  may 
touch  because  they  are  concerned  to  resist  the  demand  and  to  prevent 
the  fund  from  being  exhausted  by  collusion."  This  is  sustained  by 
English  authority  and  accords  with  the  rule  of  Calvert  on  Parties  in 
Equity,  11  :  "  All  persons  having  an  interest  in  the  object  of  the  suit 
ought  to  be  made  parties."  (Smith  v.  The  Trenton  Delaivare  Falls  Co., 
3  Green's  C.  R.  508,  505  ;)  another  rule  is  that  no  person  is  necessa- 
rily to  be  made  a  party  unless  his  interest  may  be  affected  by  the  decree. 
To  reconcile  the  rules  we  must  construe  the  first,  as  extending  only 
to  persons  interested  in  the  event  of  the  suit,  and  not  to  persons  inte- 
rested only  in  the  question  involved  in  the  issue.  There  is,  however, 
another  rule,  that  where  a  defendant  is  interested  in  having  another 
made  a  party  defendant,  the  plaintiff  is  obliged  to  make  him  a  party,  so 
that  the  principal  defendant,  may  have  his  assistance  in  the  defence. 
This  rule  is  an  exception  to  the  second  rule  mentioned,  and  must  be 
understood  with  this  limitation,  that  a  defendant  is  not  entitled  to  the 
assistance  of  a  mere  witness,  for  if  one  be  made  a  party  against  whom 
the  plaintiff  can  have  no  decree,  but  who  may  be  examined  as  a  wit- 
ness, the  defendant  may  demur.  A  party  to  entitle  himself  to  the 
assistance  of  a  third  party  witliin  the  meaning  of  the  rule,  must  make 
it  appear  that  he  has  a  right  to  claim  through  or  rely  on  the  equitable 
title  of  the  third  party.     (Ibid.,  19  Pick.  R.  165,  162.) 

The  general  rule  therefore  is,  that  all  are  necessary  parties  having 
an  interest  in  the  subject  matter  which  may  be  affected  by  the  decree. 
The  rule  is  founded  in  the  great  principle  of  preventing  future  litiga- 
tion and  taking  away  multiplicity  of  suits  by  adjudicating  upon 
the  rights  of  all  such  parties  upon  whom  a  decree  may  or  ought  to 


S.  I.]  NOTE    ON    PARTIES.  398 

sufficiently  represented  by  an  administrator  limited  to  the  pur-  '  Pasties  oen- 
poses  of  the  subsequent  suit.      Davis  v.  Chanter,  14  Sim.  ^12. 

operate.     (See  Hodges  v.  Saunders,  17  Pick.  R.  473, 470  ;  Vanderpool 
V,  Davenport's  Ex'rs,  2  Green's  C.  R.  122-3, 120  ;    Dehart  v.  Dehart, 
Idem.  472-3,  471  ;  Mandecille  v.  Riggs,  2  Peters,  487-8, 482.)     Hence, 
all  interested,  in  the  residuum,  as  former  observed.     ( Vanderpool  v.  Da- 
venport''s  ExWs,  supra,)  ^.s  wl)ere  a  resi'Juary  legatee  sues  for  settle- 
ment and  distribution,  all  the  residuary  legatees  or  their  representatives 
must  be  parties.    It  grows  out  of  the  great  principle  above  slated,  a 
principle  of  great  convenience  in  the  administration  of  justice,  still  as 
applicable  to  general  cases  it  is  not  inflexible.     It  may  be  dispensed 
where  impracticable  or  very  inconvenient  to  enforce  it.     But  when 
complainant  seeks  a  final  settlement  and  distribution  of  the  estate,  it  is 
important  that  one  investigation  should  conclude  all  who  have  an  inte- 
rest, and  as  those  not  parties  are  not  bound  by  the  decree,  there  should 
be  no  dispensation  of  the  rule  except  for  necessary  cause.    Hence 
though  one  of  the  residuary  legatees  died  insolvent,  and  no  administra- 
tion taken,  yet  the  court  held  there  was  no  necessity  of  dispensing  the 
rule.     {Dehart  v.  Dehart,  supra.)     So,  all  liable  to  contribution  should 
when  practicable  be  brought  in,  so  as  tiieir  equities  and  the  rights  of 
plaintiff  may  be  adjusted.     There  are  exceptions,  it  is  true,  to  the  rule, 
but  they  are  founded  in  special  considerations  ;  as  where  a  decree  of 
contribution  would  be  useless  or  the  proceeding  defeat  the  jurisdiction 
of  the  court,  and  the  parties  are  not  indispensable  to  a  decree,  or  where 
the  convenient  administration  of  justice  forbids  it  in  the  particuLir  case. 
(MaridecUle  v.  Riggs,  supra.)     But  according  to  the  general  rule,  that 
ail  interested  in  the  subject  matter  of  a  suit  in  equity,  whether  directly 
and  immediately,  or  incidentally  and  remotely,  are  to  be  made  parties 
so  that  complete  justice  may  be  done  between  all  parties  interested  in 
one  suit.     {Crease  et  al.  v.   Babcock  et  al., 10  Metcalf 's  R.   (Mass.) 
631-2.)     Where  there  is  a  joint  or  joint  and  general  contract,  each  of 
the  debtors  must  be  brought  before  the  court.     The  reasons  assigned 
are  that  the  debtors  are  entitled  to  the  assistance  of  each  other  in  taking 
the  account  and  to  mutual  contribution  upon  excess  of  payment  beyond 
their  respective  shares.      But  where  the  reasons  cease,   the    rule 
ceases,  alW  therefore  if  the  demand  be  admitted,  and  there  can  be  no 
effectual  contribution  from  the  other  parties,  it  is  not  allowed  to  pre- 
vail ;  and  in  cases  of  joint  and  several  contracts,  the  rule  itself  has  not 
stood  without  contradiction.     The  rule  has  been  relaxed  where  the 
parties  before  the  court  were  the  only  solvent  persons  and  admitted 
the  debt ;  where  tlie  absent  party  was  beyond  the  process  of  the  court, 
and  where  he  stood  in  tlie  situation  of  a  mere  surety,  though  it  might 
be  otherwise  if  he  were  a  co-surety.     (Reimsdyk  v.  Kane,  1  Gall.  R. 

33 


398  NOTE    ON    PARTIES.  [S.  I. 

I.  Parties  gen-  A  residuary  legatee  is  a  necessary  party  to  a  suit  by  the 
V.i^S?~^-^  personal  representative  of  the  surviving  executor  of  a  testator, 
tee^n^aTui't'by  instituted  for  the  purposB  of  recovering  a  part  of  the  assets 
the  rcpresenta-  aHerred  to  have  been  possessed  by  the  executor  who  died  first. 

tive  of  one  cxe-  t>  r  J 

cutornpninsttho  AduTUs  v.  Barry,  2  Coll.  285. 

representative  "^ 

of  another  exe-  • — ■ — ■ — 

cutor. 

383-4,  371.),  But  the  rule  that  all  in  interest  must  be  before  the  court 
is  rather  a  rule  of  convenience,  and  will  not  be  followed  when  llie  legal 
right  is  so  entirely  technical  and  unimportant  as  to  warrant  the  court 
•  in  passing  it  by  where  its  observance  would  be  attended  with  great  in- 

convenience and  answer  no  single  beneficial  purpose.  Hence,  a  mort- 
gagor who  has  assigned  his  interest,  but  not  under  seal,  and  retains  the 
legal  interest,  need  not  be  a  party  to  bill  of  foreclosure  by  assignee.  But 
assignor  of  judgments  and  bonds  must  be  parties,  they  having  a  legal 
right  which  no  assignment  can  transfer.  Where  choses  in  action  are 
strictly  of  legal  character  the  propriety  of  the  rule  is  obvious ;  but 
even  in  such  cases  is  not  strictly  enforced  where  the  legal  ri;iht  is  so 
entirely  technical  and  unimportant  as  above  mentioned.  Packer  v. 
Stevens,  2  Green's  C.  R.  58,  69,  56.  But  see  in  New-York  cases 
quoted  under  the  first  branch  of  the  rule,  sttpra.) 

There  is  a  current  of  authority  adopting  more  or  less  a  general  prin- 
ciple of  exception,  by  which  the  rule  that  all  interested  must  be  parties, 
vields  when  justice  requires  it  in  the  instance  of  either  of  plaintiffs  or 
defendants.  {Stevenson  el  al.  and  Peril  et  al.  v.  Austin  el  al.  3  Metcalf^s 
R.  474,  480  et  seq.)  The  rule  is  subject  to  the  discretion  of  the 
court.  It  was  made  and  may  be  modified  to  promote  justice.  (^Elmen- 
dorff  v.  Taylor,,  10  Wheat.  152.)  The  rule  though  general  is  not  uni- 
versal, but  has  its  exceptions  in  cases  of  creditors,  or  legatees  of  per- 
sonal estate,  whose  interest  is  supposed  to  be  defended  by  the  personal 
representative,  or  where  parties  are  so  numerous  as  would  cause  great 
inconvenience,  in  bringing  them  in,  or  where  one  tiles  a  bill  on  behalf 
of  himself  and  others.  In  applying  the  general  rule,  if  one  of  several 
joint  mortgagees  dies,  his  representatives  being  interested  in  the  object 
of  the  suit,  must  be  parties.  The  right  to  sue  or  defend  does  not  rest 
alone  in  the  surviving  obligee.  (Smith  v.  The  Trenton  and  Delaware 
Falls  Co.,  3  Green's  C.  R.  508,  505.)  The  rule  is  not  universally 
applicable  to  cases, in  the  courtsof  the  United  States.  (See  Elmendorff 
V.  Taylor,  supra,  Russell  v.  Clarke's  Ex^rs,  7  Cranch,  69-97,  and  Vat- 
tier  v.  Hinde,  7  Peters,  263-4,  252,  ante  p.  34  n.)  Hence,  the  Circuit 
Court  of  United  States  will  dispense  with  the  joinder  of  a  non-citizen,  if 
without  prejudice  to  his  rights  the  court  can  decide  the  merits  as  be- 
tween those  present.  (Ibid,  and  Harrison  v.  Urann,  1  Story's  R.  66, 
64.) 

The  rule  is  modified  or  partially  dispensed  as  justice  and  the  exi-> 


8. 1.] 


NOTE    ON    PARTIES.  398 


A  tenant  for  life  cannot  sustain  a  suit  for  a  commission  to  '•  Parties  qen- 

ER*LLV. 

ascertain  boundaries,  without  making  the  remaindermen  par-  V^X'^z-^^ta/ 
ties  to  the  suit ;  for  in  such  case  all  who  are  interested  in  the  taTsuit^TM- 
property  must  be  before  the  court.  Ragley  v.  Best,  1  Russ.  JF^'*'"^  bounda- 
&  My.  659. 

gency  of  the  case  requires.  As  where  they  are  numerous  and  great 
delay  and  expense  would  result  from  attempting  ta  make  all  parties, 
and  the  court  can  d''cide  between  those  before  them.  Thus  where  100 
partners  each  executed  a  mortgage  to  secure  the  partnership  debts  a 
foreclosure  of  each  without  making  the  others  parties  was  allowed.  It 
is  a  proceeding  in  rem  upon  a  separate  mortgage  made  on  a   separate  , 

liability.  (Boisgerardetal.v.  Wall,  \  Sme!es  and Marshalls,M\ss.  C. 
R.,  426-7,  404.  So  where  the  creditors  of  an  insolvent  were  nume- 
rous, some  residing  out  of  the  commonwealth,  and  residence  of  others 
unknown,  it  was  held  sufficient  to  make  parties  to  bill  concerning  the 
assets,  the  assignees  of  the  insolvent  who  had  assigned  his  property  for 
the  payments  of  debts,  the  assignees  alone  having  a  right  to  claim  the 
property,  having  the  legal  title,  and  who  represent  the  interests  of  all 
the  creditors  interested.  Stevenson  et  al.  and  Peril  elal.  v.  Austin  et 
al.,  3  Metcalf  R.  474,  480,  et  seq.  In  this  case  the  assignees  and 
assignor  were  made  parlies  defendant  by  certain  claimants  of  an  equi- 
table fund  assigned,  and  it  was  held  sufficient.  Ibid.)  So,  a  few  credi- 
tors of  a  deceased  debtor  may  sne  his  representatives  for  account  of 
assets  and  payment  of  the  demands  of  the  creditors.  So  where  nume- 
rous persons  have  a  common  interest  in  a  particular  fund,  one  or  more 
may  sue  for  the  benelit  of  the  whole,  for  the  purpose  of  obtaining  adis-  , 

Iribution  of  the"  fund.  In  such  cases  all  the  persons  interested  may 
come  in  and  prove  their  claims  before  the  Master,  and  entitle  themselves 
to  share  in  the  benefit  of  the  decree.  Indeed  these  are  really  and  sub- 
stantially, thonyh  not  nominally  parties.  Crease  et  al.  v.  Babcock 
et  al.,  Hi  Metcalf  Rep.  Mass.  531-2.  This  doctrine  was  fully  con- 
sidered and  the  reason  of  the  rule  regarded  as  peculiarly  applicable  to 
that  case.  It  was  there  held  that  under  the  Revised  Statutes  of  Mass. 
which  makes  stockiiolders  of  a  bank  liable  in  their  individual  capaci- 
ties in  proportion  to  the  stock  they  may  respectively  hold  at  tlie  disso- 
lution of  the  charter,  that  the  bill-holders  cannot  severally  maintain  a 
bill  in  equity  against  the  stockholders  to  compel  payment  and  redemp- 
tion of  the  unpaid  bills  held  by  them  respectively,  but  that  all  of  them 
must  join  in  one  bill,  or  one  or  more  of  them  file  a  bill  for  the  benefit  of 
all  against  all  the  stockholders.  Ibid.  All  who  are  entitled  to  claim  must 
Bue  as  plaintiSs, or  be  allowed  to  com?  in  and  prove  tlreir claims  before 
the  m.tstor  on  a  suit  brought  by  some  for  the  benefit  of  themselves  and 
others ;  because,  though  their  claims  are  several  the  fund  liable  for 


398  NOTE  ON  PARTIES.,  [S.  I. 


I,  Parties  gen-       Wliere  a  suit  is  instituted  for  the  sale  of  real   property,  in 

EBALLY.  _  .* 

V^^^V'^w/  which  there  is  an  estate  in  fee  defeasible  by  an  executory  de- 
^see^'irr^a  suit  "^^^^»  ^^^  inheritance  is  not  sufficiently  represented  by  the  per- 
foraeale.  son  who  has  such  defeasible  estate,  but  the  persons  claiming 

under  the  executory  devise  must  also  be  parties.      Goodess  v. 

Williams,  2  Y.  &  C.  Ch.  C.  595. 

them  is  limited  and  may  be  insufficient  to  pay  the  whole  ;  and  then 
they  must  divide  the  fund  in  propartion  to  the  amount  of  their  respec- 
tive claims  as  holders  of  bill.^,  having  an  equal  and  common  right 
to  the  fund.  And  so  in  like  m-inner  the  court  thought,  all  who  are  liable 
must  be  made  defendants,  for  although  they  are  severally  liable  and  in 
different  proportions  it  is  a  liability  to  contribute  to  a  common  fund  for 
the  payment  of  certain  claims  of  the  plaintiffs,  and  if  the  whole  amount 
for  which  all  the  stockholders  are  liable  is  not  required  to  satisfy  the 
full  claims  of  the  bill-holders,  the  defendants  will  be  liable  to  contribute 
to  the  common  fund  such  proportion  of  the  amounts  for  which  they 
may  be  held  liable  as  will  be  sufficient  to  satisfy  the  claims  of  bill-hol- 
ders as  actually  established  by  the  result  of  the  suit.  In  no  other  way  can 
the  just  proportion  be  established  which  the  plaintiffs  are  respectively 
to  recover  if  the  fund  is  insufficient  to  satisfy  tliem,  or  the  proportion 
which  the  defendants  are  to  contribute,  in  case  the  fund  is  more  than 
sufficient  to  satisfy  the  claims  upon  it.  Crense  et  aJ.v.  Babcock  et  al., 
10  Metcalf  R.  632,  et  spq.  525-recognised  and  re-affirmed  in  Grew  v. 
Breed  et  al.  Id.  bib,  569. 

See  further  exceptions  to  the* general  rule,  1  Cond.  R.  607  n.  and  the 
case  of  West  v.  Randall  et  al.  2  Mason  R.  181,  in  which  the  exceptions 
are  stated  :  as  where  a  person  is  without  the  jurisdiction,  or  personal 
representative  is  necessary,  but  right  of  representation  in  dispute  where 
discovery  of  necessary  parties  is  sought,  the  court  will  if  possible  decree 
between  the  parties  before  it ;  or  where  parties  are  numerous,  the  ques- 
tion is  of  general  interest,  and  a  few  may  sue  for  the  whole ;  or  the  par- 
ties form  part  of  a  voluntary  association,  and  may  be  fairly  supposed  to 
represent  the  rights  and  interests  of  the  whole.  Here  ii  the  bill  purports 
for  plaintiffs  and  all  others  interested,  the  plea  for  want  of  parties  will 
be  repelled.  But  the  court  will  permit  the  others  to  come  in.  In  this 
class  are  suits  by  part  of  a  crew  of  a  privateer  against  prize  agents  for 
account  and  proportion  of  prize.  The  bill,  if  for  themselves  and  in 
behalf  of  all  the  rest  of  the  crew,  will  be  sustained.  (Ibid.) 

Under  the  operation  of  the  general  rule,  the  real  persons  in  interest 
should  be  the  parties.  (See  under  the  first  branch  of  the  general  rule 
as  defined,  supra.)  So  the  parties  should  be  interested  ;  hence  a  mere 
witness  is  not  a  proper  pariy.  But  making  officers  and  agents  of  a  cor- 
poration parties  defendants  is  an  exception  to  the  general  rulci  that  a 


S.  I.] 


NOTE  ON  PARTIES.  398 


The  cou-rt  will  not  declare  a  powei-  of  appointment  well  ^-  ^^rIHy.*'^'' 
executed  in  the  absence  of  the  party  interested  in  default  of  V.X'V"^-^ 
appointment.     Grace  v.  Torrington,  1  Coll.  Ch.  C.  3.  ed  in'de'fauitf  of 


appoiDtiuent. 


mere  witness,  having  no  personal  interest  in  the  subject  of  the  suit,  can- 
not be  made  a  party.  But  it  is  the  settled  law  in  this  country  andEng- 
land,  that  in  a  bill  against  a  corporation  for  relief,  its  officers  and  a|2:ent8 
who  are  cognizant  of  the  facts  to  which  it  relates,  may  be  made  defen- 
dants for  the  purpose  of  obtaining  an  answer  on  oath,  which  cannot  be 
obtained  in  any  other  way  ;  but  where  the  wliole  relief  claimed  is 
against  others,  and  not  the  corporation,  and  tlieir  officers  are  made  par- 
ties, for  instance,  to  ascertain  when  certain  stocks  had  been  transferred 
by  that  corporation,  here,  being  merely  witnesses,  they  do  not  come 
within  the  exception  to  the  general  rule.  But  in  cases  that  come 
within  such  exception,  the  bill  need  not  aver  that  the  discovery  sought 
is  confined  tp  such  as  are  so  made  parties.  It  is  sufficient  if  it  appear 
the  facts  charged  are  material  to  the  relief  sought  against  the  corpora- 
tion, and  are  known  to  the  officer  or  agent,  especially  where  the  disco- 
very relates  to  transactions  with  such  officer  or  agent.  {Many  v.  The 
Beekman  Iron  Co.  et  al.,9  Paige's  R.  193-4, 188.) 

All  interested  should  be  parties,  but  all  as  we  have  seen,  are  not  in- 
dispensable, where  a  decree  on  merits  can  be  made  as  between  those 
before  the  court.  It  is  not  essential,  as  at  law,  that  parties  litigant 
should  be  on  opposite  sides.  A  decree  may  be  made,  as  between  co- 
defendants  where  they  setup  conflicting  rights.  {Piatt  v.  Oliver  and 
Williams,  3  McLean's  R.  31-2,  27. 

4.  Those  who  must  be  made  parties.  All  who  should,  must  be,  as 
we  have  above  seen,  if  they  conveniently  can  be,  and  justice  does  not 
require  a  dispensation  of  them  as  parties.  For  although  if  a  decree  on 
the  merits  can  be  made  as  between  those  present,  it  will  be  where  others 
are  out  of  reach  of  process,  numerous,  or  within  the  peculiar  circum- 
stances qualifying  the  general  rule,  yet  otherwise  they  must  be  brought 
jHjfor  then  the  principle  of  ending  litigation  demands  it.  A  fortiori,  if  no 
decree  can  be  made  without  them,  they  must  be  made  parties.  The 
proper  course  where  there  is  a  want  of  necessary  parties,  is  to  order 
the  cause  to  stand  over  to  enable  complainant  to  bring  the  necessary 
parties  before  the  court;  or  the  bill  should  be  dismis.«ed  without  preju- 
dice, and  that  his  right  to  bring  a  new  suit,  making  all  proper  persons 
parties,  will  not  be  barred  by  tlie  decree.  (Miller  v.  McCan,  7  Paige 
R.  457,  451  ;  Van  Epps  v.  Van  Deusen,  4  Paige,  64.) 

A  bill  may  be  dismisR-ed  if  plaintiff  when  called  on  to  make  proper 
parties  refuses  or  unreasonably  delays  :  but  it  must  be  on  demurrer,  plea 
or  answer  pointing  out  the  persons  whom  defendant  insists  ought  to  be 
parties.     (Greenleafv.  Queen,  1  Peters,  149.) 

To  remove  impediments  or  prevent  failure  in  the  ordinary  adminis- 


398  NOTE  ON  PARTIES.  [S.  I. 

^  ^'eb»u!y.*"''*"       '^^  ^^'^'  claiming  an  estate,  an  alleged  tenant  by  the  cour- 
tesy is  a  necessary  party.     Parker  v.  Carter,  4  Hare,  406. 


Tenant   by    tho 
courtesy. 


tration  of  justice  in  favor  of  the  constitutional  right  of  redress  of  those 
within  its  jurisdiction,  legislatures  of  some  of  our  States,  have  author- 
ized, in  cases  of  absentees  or  unknown  owners,  who  are  indispensable 
or  necessary  parties,  publication  of  an  order  for  them  to  appear,  and  on 
default  allowed  the  bill  to  be  taken  as  confessed  against  them,  and  a  decree 
to  pass  under  certain  safeguards  for  the  protection  of  their  rights  and 
interests.  In  England  without  similar  legislation,  such  absentees  as  are 
known  aie  named  as  parties  in  the  bill,  and  may  come  in  ;  absence  is 
charged  in  the  bill,  and  the  court  proceeds  against  them,  and  disposes 
the  property  if  it  is  in  t'le  power  of  the  other  parties.  (See  p.  34  n.  and 
authorities.)  In  New-York,  besides  such  publication  as  in  ordinary 
cases,  in  case  of  absence,  the  bill  in  partition  must  state  the  rights  and 
interests  of  all  parties  in  the  premises,  so  far  as  known  to  complainant 
and  if  not  fully  known,  then  according  to  his  information  and  belief. 
And  if  the  share  or  interest  of  any  party  is  uncertain  or  contingent,  or 
if  the  ownership  of  the  inheritance  depends  upon  an  executory  devise,  or 
the  remainder  is  contingent,  so  that  the  parties  who  may  be  ultimately 
entitled  to  the  same  cannot  be  named:  the  complainant  should  set  forth 
the  nature  of  such  contingent  interest,  so  that  the  court  may  ascertain 
and  protect  the  rights  of  such  unknown  or  contingent  owners.  And 
whatever  complainant  is  bound  to  state  in  his  bill,  the  defendants  may 
be  required  to  admit  or  deny  by  their  answers.  (See  further.  Van 
Cortland  v.  Beekman  et  al,  6  Paige  R.  495-6,  492.) 

In  Ohio,  partition  proceediniis  are  considered  as  analogous  to  those 
in  rem,  and  the  publication  of  notice  by  advertisement  as  required  by 
statute,  is  sufficient  to  apprize  and  to  bind  defendant's  interest.  (PillS' 
bury  et  al  v.   Dvgan  etal,  9  Ohio  R.  117,  120. 

Our  judiciary  has  struggled  to  bend  the  rule  of  parties  to  a  principle 
of  justice,  which,  as  above  mentioned,  has  grown  into  a  principle  of 
exception  to  the  rigid  exception  of  the  rule,  according  to  Grisuold  v. 
Jackson,  2  Edw.  C.  R.  461  ;  affirmed  in  erro'r,  4  Hill's  R.  622,  there 
are  many  cases  where  a  person,  though  not  a  nominal  party,  is  con- 
cluded by  the  decree,  because  he  has  in  fact  taken  the  management  of 
the  cause,  or  when  he  has  notice  of  its  pending  and  a  chance  to  litigate 
but  neglects  to  do  so.  As  where  party  holds  the  mere  equitable  in- 
terest — an  assignee  or  ccs/i.j  qne  irws/,  or  v\  1  ere  he  is  a  guarantor  or 
indemnitor  of  the  party  against  the  consequences  of  the  suit.  Id.  530, 
et  seq.  But  a  mere  surety  is  not  bound  by  decree  between  his  prin- 
cipal and  the  creditor,  though  the  suit  was  conducted  exclusively  by 
the  surety  as  agent  of  the  principal.  Secus,  if  surety  voluntarily  came 
in,  and  litigated  as  such  in  the  name  of  his  principal,  with  assent  of 
the  creditor.    Id.  622. 


DICTION. 


S.  I.  II.]  NOTE  ON  PARTIES.  398 

Where  tlie  object  of  a  bill  is  to  restrain  proceedings  against  '•  ^^"^1^°""* 
the  sheriff,  it  is  not  improper  to  make  him  a  party.      Farquhar-  ^^-•'V^fc->' 

._„         T>',   7  n  T>  0  1  Sheriff,  in  a  suit 

SOnv.  Flicker,  2  KuSS.  81.  to  restrain   pro- 

If  a  person  who  is  not  a  party  to  an  action  is  made  a  party  ^ee^  mgs  againet 
to  a  bill  of  discovery  in  aid  of  the  defence  to  the  action,  he  jyto?n"cUon"o 
may  demur,  although  the  bill  shows  that  he  may  have  a  bene-  '^^ich^I'^bm  ^ 
fit  from  the  action.  Irving  v.  Thompson,  9  Sim.  17;  Kerr  v  discovery  is  filed. 
Rew,  decided  by  the  L.  C.  10  Sim.  '370. 

Where  a  bill  is  filed  by  a  landlord  to  restrain  an  ejectment,  the  ^'^"restrain  *an 
tenant  must  be  made  a  party,  unless  the  landlord  has  been  ad-  ejectment, 
mitted  to  defend  the  action.     Pool,  v.  MarsJi,  8  Sim.  528. 

If  there  are  two  plaintiffs  in  an  action  of  ejectment,  it  is  ne-  ^^^  ^l^  P]gJ,°; 
cessary  or  proper  that  both  of  them  be  plaintiffs  to  a  bill  to  pre-  |^''a\iiMo"^re' 

vent  the  settinfj  up  of  outstandino:  terms  ;   because,  if  one  of  vent  the  setting 
o      t  a  '  '  up  of  a  term. 

them  is  made  a  defendant,  the  power  of  the  court  overthe  ac- 
tion is  thereby  abridged.      BaJcer  v.  Harwood,  7  Sim.  373.  . 

II.  Parties  out  of  the  Jurisdiction  (1).  ii.  Parties  ottt 

OF     THE      JdKIS- 

It  is  not  enough  to  state  that  persons,  who  in  respect  of  in- 

The  general  rule,  however,  requires  the  actual  or  cnnstructive  pre- 
sence of  all  interested,  as  the  condition  of  a  decree  affecting  their  in- 
terests, as  stated  in  note,  p.  34,  supra.  The  principle  applies  to  all 
courts  of  equity,  that  no  court  can,  without  sucii  presence,  adjudicate 
directly  upon  a  person's  right.  (See  case  of  Mallow  v.  Hitide,  12 
Wheat.  193,  in  note,  p.  34.)  The  principle  is  founded  on  natural  jus- 
tice, and  is  fortified  directly  or  in  analogy  by  declarations  of  rights  and 
constitutional  guarantees.  No  man  can  be  condemned  unheard,  nor 
deprived  of  life,  liberty,  or  property,  without  due  process  of  law.  Even 
the  right  of  eminent  domain  cannot  be  enforced  without  such  process 
and  just  compensation. 

(1)  See  notes  to  pp.  398,  34. 

In  partnership  cases  where  bill  is  filed  for  recovery  of  a  debt  out  of 
deceased  partner's  estate,  the  surviving  partner's  are  necessary  and 
proper  parties,  for  they  have  an  interest  in  taking  the  accounts- 
Vose  v.  Philbronk,  3  Story  R.  346-7.  But  if  the  otl)er  partners  are 
out  of  the  jurisdiction,  it  is  in  the  sound  discretion  of  the  court  to 
dispense  or  to  insist  on  tiieir  being  parties,  so  as  to  prevent  injustice  to 
the  absent  partners.     Ibid. 

The  court  (Circuit  Court  of  the  United  States,)  must  have  jurisdic- 
tion between  each  of  the  plaintiffs  and  defendants,  and  if  one  of  the 
defendants  do  not  live  in  the  ttate  whore  the  suit  is  brought,  the  com- 


399  NOTE    ON   PARTIES.  [S.  II.  IIL 

"V^THrjuR^r  ^^^^^^  ^'■^  necessary  parties,  are  out  of  the  jurisdiction  :  the 
bill  mus't  go  on  to  pray  process  against  them  when  they  shall 
come  within  the  jurisdiction.  The  reason  for  this  is,  that  they 
may  have  an  opportunity  of  appearing  and  of  taking  what, 
course  they  may  deem  most  for  their  advantage.  Munoz  v. 
De  Tastet,  1  Beav.  109,  note.  Brooks  y.  Burt,  1  Beav.  106. 

•entativl  '^^^'^*"  Where  a  bill  is  filed  for  the  general  administration  of  a  tes- 
tator's estate,  it  is  necessary  to  have  a  personal  representative 
of  the  testator  before  the  court ;  that  is,  one  who  is  not  only 
made  a  party  to  the  bill,  but  is  also  within  the  jurisdiction  of 
the  court ;  and,  therefore,  where  the  executor  is  out  of  the 
jurisdiction,  administration  must  be  taken  out  for  the  purpose 
of  the  suit,  although  the  person. who  so  takes  out  administra- 
tion is  a  mere  nominee  of  the  plaintiff.  Lowry  v.  Fulton^  9 
Sim.  104. 

Ctttuisqice  trust.  Where  a  trust  fund  is  to  be  administered  under  the  direction 
of  the  court,  the  general  rule  requiring  the  cesluis  que  trust  to 
be  parties  is  applicable  to  foreign  trustees  and  cestuis  que  trust 
residing  out  of  the  jurisdiction,  unless  a  special  case  of  diffi- 
culty or  inconvenience  in  the  application  of  the  rule  be  shown 
Weatherhy  v.  St.  Giorgio,  2  Hare,  624. 

in.    MiSJOINDEB  TTT       -HT  -n  >-i       -n.  /,\ 

OF  Parties  as  lU.    MISJOINDER    OP    r ARTIES    AS    Co-PlAINTIPFS  (1). 

CO-PtAINTlFFS. 

If  co-plaintiffs  actually  have  or  may  have  conflicting  interests 


plainants  being  citizens  of  another  state,  such  defendant  may,  by  volun- 
tary answer,  disclaim  any  interest,  and  the  bill  as  to  him  may  be  dis- 
missed. Where  the  reason  for  not  making  a  party  is  want  of  jurisdic- 
tion, the  court  will  retain  the  case  and  decree  as  between  parties  before 
them,  if  they  can  do  so  without  ailecting  the  interests  of  those  who 
are  without  the  jurisdiction,  i'lie  bill  should  slate  the  citizenship  of 
those  in  another  state,  and  therefore  not  within  the  jurisdiction  as  a 
reason  for  not  making  them  parties,  and  the  court  will  decree  as  above. 
Hinde  et  al.  v.  Vattier  el  al.  1  McLean's  R.  114,  115,  110  ;  Vattier  v 
Hinde,  7  Peters  263-4,  262  ;  see  also  Russell  v.  Clark^s  Executors,  7 
Cranch's  R.  69-97;  2  Cond.  R.  426-7.  Harrison  v.  Urann,  1  Story's 
R.  66,  64. 

(1)  Where  two  of  tlie  coin plainants  wholly  failed  to  show  any  right 
to  join  other  complainants  in  filing  the  bill,  this  upon  demurrer  to  the 
whole  bill,  was  held  a  fatal  objection,  and  on  appeal  the  decretal  order 
overruling  the  demurrer  was  reversed  with  costs,  and  demurrer  allowed 
with   leave  to  plaintiff  to  amend  by  striking   out  the  objectionable 


S.  III.  ]  NOTE   ON   PARTIES.  39^ 

in  regard  to  the  object  of  the  suit,  or  if  any  or  either  of  them  "J^  p^RxTElTf 
have  no  interest  in  the  subject-matter  of  the  suit,  there  is  a  mis-   co-PtAiNTiFPi 
joinder.     But  to  be  free  from  the  objection  of  misjoinder,  it  is 
not  necessary  that  co-plaintiffs  should  have  an   iflentity   of  in- 
terest. 


names,  &c.  Bias  et  al.  v.  Bouchard,  Ex.,  and  U.  S.,  10  Paige  R. 
464-5,  445. 

Misjoinder  of  parties  complainant  must  be  objected  to  by  demurrer 
or  in  the  answer.  It  is  too  late  to  uroe  formal  objection  of  this  kind 
for  the  first  time  at  the  hearing.  The  Trustees  of  Water/own  v.  Cowen, 
4  Paige  R.  515,  510. 

Individuals  having  no  commiwity  of  interest  cannot  prosecute  their 
several  rights  in  one  bill;  as  where  they  merely  held  In  several  parcels 
land  derived  from  the  same  source  and  charged  with  a  separate  tax 
under  similar  circumstances.  Armstrong  et  al.  v.  Treasurer  of  Athens 
Co.,  10  Ohio  R.  236,  235  ;   State  rf  Ohio  et  al.  v.  Ellis  et  al.,  Id.  456. 

Two  or  more  creditors  having  judgments  on  which  executions  are 
returned  unsatisfied  against  some  debtor,  may  join  in  one  bill,  provided 
it  seems  the  aggregate  sum  of  their  judgments  exceeds  $100.  Dix 
et  al.  V.  Briggs,  9  fai^ie  R.  696,  595.  If  the  execution  returned  un- 
satisfied was  on  personalty,  as  where  it  issued  on  a  justice's  judgment 
not  docketed  in  clerk's  office  so  as  to  affect  realty,  the  bill  cannot  be 
filed.     Ihid. 

An  administratrix  cannot  be  made  co-complainant  withput  assent 
and  if  she  claim  adversely  to  the  prayer  of  the  bill,  she  has  a  right  to  set 
up  her  claim,  and  her  name,  on  motion,  will  be  inserted  as  a  defendant. 
Dare' s  Administrators  v.  Allen's  Executors,  1  Green's  Ch.  R.,  288. 

On  bills  implicating  the  conduct  of  an  acting  administrator,  brought 
by  his  co-administrators,  to  set  aside  a  sale,  on  allegation  that  it  was 
improperly  conducted  and  sold  below  its  value,  or  on  bills  of  this  de- 
scription, all  the  executors  and  administrators  of  testator  or  intestate 
must  be  parties.  In  this  court,  if  one  of  the  executors  or  administra- 
tors, who  is  a  necessary  party,  refuses  to  join  in  the  suit  as  a  co-com- 
plainant, the  proper  course  is  to  make  him  a  party  defendant,  stating  in 
the  bill  the  fact  that  he  would  not  consent  to  be  a  ctiu.plainant  in  the 
suit.  Where  a  bill  of  the  above  description  was  filed  by  two  adminis- 
trators, in  the  name  of  all,  and  one  of  them  swore,  im  motion  by  defend- 
ant, to  take  bill  off  the  files  and  dissolve  injunction,  that  he  was  the  acting 
administrator,  was  6atisfie<i  the  sale  was  fair,  and  that  the  bill  was  filed 
without  his  consent,  the  rourt  allowed  complainant  to  amend  by  making 
the  non-assenting  administrator  j)arty  defendant,  and  by  inserting  his 
refusal  in  the  bill,  retaining  the  injunction,  but  suspending  the  counter 
motion  of  complainant,  for  a  review  until  bill  should    bo  so  amended. 


399  NOTE   ON    PARTIES.  [S.  III. 

oJ'  pIkt"es^1s  Thus,  a  churchwarden  who  has  filed  a  bill  to  restrain  a  par- 
Co-PrAiN|nFP3^  son  from  pulling  down  the  church-yard  wall,  Aay,  after  his 
Churchwardens  y<^^r  of  office  has  ceascd.jnin  as  a  co-plaintiff  with  one  of  his 
etraln^tiiepiruinl^  succcssors  in  a  sup[)lemental  bill  for  the  purpose  of  stating 
yra'wan':^"''''^  facts  which  have  occurred  since  the  filing  of  the  original  bill. 

400  Marriott  v.  Tarpleij,  9  Sim.  279. 

Consignees.  And  where  the  separate  property  of  several  consignees  has 

become  mixed  and  confounded  together  so  as  to  be  incapable 
of  being  distinguished,  they  thereby  become  tenants  in  com- 
•  mon  thereof,  and,  as  such,  may  join  in  one  bill  for  an  account 

and  equitable  set  off  against  the  owner  of  a  ship  in  which  such 
property  was  shipped,  and  for  an  injunction  to  restrain  several 
actions  brought  by  him  against  them  for  freight  and   average- 
Jones  V.  Moore,  4  Y.  &  C.  Eq.  Ex.  351. 
Executor  of  de-       And  in  a  Suit  for  an   account  of  the  assets  of  a  deceased 
eentativr^a'^'^co.  debtor,  the  executorof  the  person  who  was  the  origiual  admin- 
M^eTole'exiJtins  '^trator  de  hows  non,  and  personal  representative  of  such  debtor, 
representative,     is  properly  joined  as  a  co-defendant  with  the  person  to  whom, 
on  the  death  of  such  original  administrator,  afresh  administra- 
tion de  bonis  non  was  granted,  and  who  thereby    became  the 
sole  existing  personal  representative  of  such  debtor.     Holland 
V.  Prior,  1  M.  &   K.  237,  (decided  by  Lord  Brougham,  C, 
overruling  the  decision  of  the  Vice-Chancellor.) 
Legatees  co-       A^ain  a  bill  is  not  demurrable  on  the  srround  of  the  ioinder 

plaintiffs  with  an       „°  ,..„.,  '^  .  .^ 

executor.  oi  legatees  as  co-plaintms  with  an  executor,   m  a  suit  tor  a 

debt  due  to  the  testator's  estate.     Rhodes  v.  Warhurton,  6  Sim. 
617. 
Mort^ajree  aco-       But  if  a  mortgagee  of  the  interest  of  a  Settler  under   a   set- 
settlor.    ^'     "  tlement  joins  with  such  settler  as  a  co-plaintiff  in  a  bill  to   set 
aside  the  settlement,  the  mortgagee  can  obtain  no  relief  by  a 
suit  so  constituted.     Bill  v.  Cureton,  2  M.  &  K.  503. 
Occupiers  co-       And  the  respective  occupiers  of  several  houses  cannot  join 
junction^  bill  To  in  a  bill  for   an  injunction   to   restrain   a   nuisance;  for   that 
ance.^'°  ^  °"*^    which  is  an  answer  to  one  may  not  be  an  answer  to  another. 

Hudson  V.  Maddison,  iSi  Sim.  416. 
Joinder   of  re-       In  a  bill  against  a  former  partner  in  respect  of  a  private  ad- 
continuing'part-  Vantage  clandestinely  obtained  by  him,  a  partner  who  retired 

ners,  as  co-plain- 

(fiffa.  ■ 

But  if  such  amendment  were  not  made  in  a  time  fixed,  the  motion  to 
take  the  bill  from  files  and^issolve  injunction  should  prevail.  Tooker 
et  al  v.  Oakley.     10  Paige  Ch.  R.  289,  288. 


S.  III.]  NOTE  ON  PARTIES.  400 

before  the  transactions  was  discovered,  and  other  persons  who   ^y'^^'^^^^lf 
subsequentlybecame  partners,  and  the  continuing  partner,  may   Co-plainti^s. 
be  all  joined  as  co-plaintiffs.     Faucet  v.  WhiteJiouse,  1  Russ.  & 
My.  132. 

But  where  a  bill  is  filed  by  some  of  the  shareholders  of  a  ^  °  *"" 
joint-stock  company,  on  behalf  of  themselves  and  all  the  other 
shareholders,  except  the  defendants,  seeking,  among  other 
things,  to  be  protected  from  a  judgment  against  the  company 
certain  other  shareholders  who  had  been  released  from  pro- 
ceedings under  the  judgment  on  payment  of  a  call  of  a  certain  .^- 
amount,  are  necessary  parties  to  the  suit:  but  they  ought  not 
be  co-plaintiffs  ;  and,  inasmuch  as  such  persons,  if  not  named 
as  defendants,  must  be  regarded  as  plaintiffs  under  the  gene- 
ral description  of  other  shareholders,  the  bill  is  demurrable  on 
the  ground  of  misjoinder,  if  it  does  not  name  them  as  defen- 
dants. Lund  V.  Blanshard,  4  Hare,  9.  But  see  Apperley  v. 
Page,  infra,  p.  415. 

And  if  a  personal  representative  of  a  trustee  by  whose  nag-  fgn^^ve  ^^^\ 
lect  an  opportunity  of  committinfT  a  breach  of  trust  had  been  trustee,  with  a 

I  I  J  o  person     seeking 

afforded,  is  joined  as  a  co-plaintiff  with  parties  seekin?  relief  relief  in  respect 

'J  I  I  °  of  a  breach  of 

in  respect  of  such  breach  of  trust,  and  it  may  be  necessary  to  trust, 
resort  to  the  trustee's  assets  for  the  purpose  of  making  good 
the  loss,  the  bill  will  be  dismissed,  because  the  interests  of  the 
co-plaintiffs   might  ultimately  become    conflicting.     Jacob    v. 
Lucas,  1  Beav.  436. 

Where  a  bill  is  filed  by  a  lessee  of  tithes,  and  by  the    vicar  vicar  a  co-pialn- 
for  the  recovery  of  tithes,  if  the  lease  of  the  tithes  was  by  pa-  oft^heV^^'^* 
rol,  the  vicar  is  properly  joined  as  a  co-plaintiff  with  the  les- 
see of  the  tithes  ;  but  if  the  lease  was  by  deed,  there  is  a  mis- 
joinder.    Foot  V.  Bcssant,  3  Y.  &  C.  Eq.  Ex.  320. 

A  bill  broufjht  for  an  account  and  for  an   injunction  to  re-    Joinder  in  abiii 

■~  •'  to  restrain  pro- 

Strain  proceedings  at  law,  cannot  be  demurred  to  on  the  ground  cccdim^s  nt  law, 

'^  .      .         .  .  of  a  plnintift'  in 

,  that  the  plaintiffs  in  equity  are  notall  defendants  at  law,  where  equity   who    is 

!••/¥>•  -i-  i/>i  "°''  ^  defendant 

the  plaintm   in  equity  who  is  not  a  defendant   at   law   has   an  utiaw. 
equal  interest  with  those  who  are  defendants  at  law.     Darthcz 
v."  Lee,  2  Y.  &  C.  Eq.  Ex.  12. 

The  joinder  of  a  person  as  a  co-plaintiff  who  is  not  entitled  Joinder  of  a  per- 

,.«.,  ,,..  !•!  !•  i>  *°"    having    no 

to  any  relief,  though  he  is  interested  in  the  subject-matter   oi  right  to  reiW. 
the  suit,  is  a  ground  for  dismissing  the  bill  with  costs   against 
all  the  plaiiltiffs,  even  though  the  objection  be  only  taken   by 


402  NOTE  ON  PARTIES.  [S.  IV. 

answer,  and  not  by  demurrer  or  plea.  So  that  where  a  fund 
is  lost  in  consequence  of  the  tenant  for  hfe  insisting  on  a  trus- 
tee placing  it  in  the  hands  of  another  person,  and  the  tenant 
for  life,  who,  of  course,  is  entitled  to  no  relief,  joins  with  the 
persons  interested  in  remainder,  in  a  bill  against  the  trustee 
to  make  him  liable  for  the  loss,  the  bill  will  be  dismissed,  even 
though  the  objection  be  not  taken  except  by  the  answer. 
Goodyear  v.  Robinson,  4  Law  J.  (N.  S.)  174,  M.  R. 

For  other  cases  connected  with  the  question  of  misjoinder, 
see  supra,  note,  p.  27,  and  note,  p.  30,  and  note,  p.  177,  and 
note,  p.  272.  See  also  Mocatta  v.  Ingilby,  and  Taylor  v. 
Salmon,  infra,  p.  414. 

^^-  VV^^^,r  IV-  Parties  to  Suits  of  a  Public  Nature*  ( 1 ). 

Suits  of  a  pub-  >    ' 

hc  nature. 

^^-^^^^^-^  The  attorney-general  may  be  made  a  defendant  to  a  bill  of 
^au^lecretfry  discovery  relating  to  matters  not  within  his  private  or  official 
tielto'a^bm'of  knowledge  or  cognizance,  and  other  public  officers  (thesecre- 
discovery.  ^.^x^  of  war,  for  instance,)  may  be  made  defendants  to  a  bill  in 

their  public  character.     Deare  v.  Attorney-General,  1  Y.  &  C. 

Eq.  Ex.  197. 

*  See  Section  VII.,  on  "  Parties  to  Suits  affecting  persons  having  a  com- 
munity of  interest." 

(1)  The  superintendents  of  the  poor  cannot  file  a  bill  against  a  hus- 
band for  county  expenses  in  support  of  his  wife  as  a  lunatic  or  pauper 
until  they  exhaust  their  remedy  at  law  by  judgment  and  execution  re- 
turned unsatisfied.  The  superintendents  arc  by  statute  a  corporation, 
and  where  it  is  proper  to  bring  a  suit  in  their  ofiicial  capacity  it  ought  to 
be  in  the  corporate  name  given  to  them  by  statute,  not  as  in  this  case, 
in  their  individual  names  with  their  official  description.  But  these 
are  matters  of  form  which  may  be  obviated  by  amendment.  Pomeroy 
V.  We/Zs,  8  Paige  R.  40y,  411,  406. 

Where  a  state  statute  authorizes  suit  against  a  county  as  against 
an  individual,  as  in  Michigan,  (but  in  Massachusetts,  on  a  judgment 
against  a  town  or  county,  the  property  of  any  citizen  is  liable.  6  Met- 
calf,  552,  cited  ut  supra,  p.  582.)  A  creditor's  bilFmay  be  filed  against 
a  county,  to  subject  equities  belonging  to  the  county,  such  as  bonds, 
mortgages,  &c.,  which  could  not  be  reached  by  execution,  on  judg- 
ment recovered  at  law,  and  nulla  bona  returned,  and  this,  notwith- 
standing a  mandamus  might  have  issued  to  compel  public  officers  to 
do  their  duty,  and  in  Michigan  to  compel  the  supervisors  agreeably  to 


S.  IV.]  NOTE  ON  PARTIES.  40^ 

Where  a  suit  is  instituted  respecting  money  given  for  super-  su„3  o"'/po^° 
stitious  uses,  and   it  is   doubtful   whether   it  will  be   for   the     i-ic  natukk. 
queen,  under  her  sign  manual,  to  direct  the  application  of  the     Attorney-gene- 
money  to  other  charities  not  superstitious,  or  whether  the  mo-  f^>  >"  "  suit  as 

•'  i  to    money     set- 

nev  will  revert  to  the  settlor  by  virtue  of  a  condition  invested  tied  tosupersti- 

"'  •'  _  tious  uses. 

in  the  deed  for  that  purpose,  the  attorney-general  is  a  neces- 
sary party.  De  Themines  v.  De  Bonneval,  7  Law  J.  (O.  S") 
35. 

■statute  to  levy  a  tax  to  pay  the  judgment.  Lyell  v.  the  Board  of  Su- 
pervisors of  St.  Clair  Co.,  3  McLean,  580. 

In  New-York,  tlie  chancellor  decided  that  a  bill  in  nature  of  a  judg- 
ment creditor's  bill,  lies  by  board  of  supervisors  of  a  county  to  collect  a 
tax  from  equitable  assets,  on  return  of  collector  that  no  visible  property 
of  debtor  can  be  found,  out  of  wliich  the  tax  can  be  levied.  Superd- 
sors,  <f-c.  V.  Durant,  9  Paige  R.  185-137,  182.  But  the  decision  was 
reversed  in  error  10  to  8,     2(5  Wend.  66. 

The  grantee  of  a  lot  adjoining  a  public  square  having  a  special  co- 
venant from  owner  that  it  shall  be  kept  open,  may  restrain  him  from 
violating  the  covenant  and  join  the  corporation  as  a  party.  Trustees 
of  Watertown  v.  Coweru,  4  Paige  R.  514,  515,  510.  See  Id.  513, 
et  seq.  as  to  the  doctrine  of  dedication  of  lands  in  a  city  or  village  to 
be  used  as  a  public  common,  open  square,  or  public  walk,  a  square  or 
"  place,"  dedicated  generally  to  the  use  of  the  inhabitants  of  a  town  or 
village,  and  not  conveyed  directly  to  a  corporation  for  corporate  pur- 
poses, authorizes  one  or  more  inhabitants  who  have  property  adjoining 
it,  and  which  is  affected  in  its  value  by  the  square,  may  enforce  the  ex- 
ecution of  the  trust,  to  enjoin  the  corporation  from  diverting  it  to  a 
different  public  use.  It  was  valuable  property  appurtenant  to  the 
estates  of  the  lot  holders,  a  vested  right  which  the  legislature  could 
not  authorize  the  corporation  to  chanpe  in  its  character.  Le  Clerq  et 
al.  V.  Town  of  Gallipolis,  7  Ohio  R.  354,  condensed  from  7  Hammond 
R.,  1st  part,  217. 

Bill  in  nature  of  a  creditor's  bill  for  satisfaction  of  a  tax,  a  right 
without  a  remedy.  The  decision  of  the  chancellor  in  The  Supervi- 
sors of  Albany  v.  Durant,  9  Paige  186-7,  182,  tliat  the  jurisdiction  of 
the  court  extends  to  a  bill  in  nature  of  a  creditor's  bill  on  return  of 
collectors  of  a  tax  unsatisfied,  to  reach  choses  in  action  of  bond  and 
mortgage  or  equitable  assets  which  could  not  be  levied  on  and  the  tax 
collected,  that  such  relief  was  within  the  appropriate  powers  of  the 
court  where  the  remedy  at  law  was  inad.  quale,  that  it  was  sustainable 
in  allowing  to  the  statutory  remedy  in  favor  of  a  judgment  creditor  on 
return  of  execution   unsatisfied   and  was  within   tho   equity  of  that 


402  NOTE    ON    PARTIES.  [S.  IV. 

IV.  Parties  to       The  attornev-ffeneral  is  a  necessary  party  to  a  bill  filed  by 

Suits  op  a  pub-  _  .  .        .  J    r        j  J 

Lie  NATURE,     ail  incorpoiated  charitable  institution,  for  a  legacy,  where  it  is 

Attorney-ffene-  ^°  remain  invested  in  stock,  and  the  dividends  are  to  be  ap- 

rai,  in  n  suit  by  p]ie(j   for  purposes  not  correspondinof   with  the  trusts  upon 

an  incorporated  .•  r  o  \ 

charitable  iusti-  which  tlic  fjeneral  funds  of  the  institution  are  invested.     Cor- 
poration  of  the  Sons  of  Clergy  v.  Mose,  9  Sim.  610. 


statute,  but  that  the  statute  was  merely  declaratory  of  the  pre-existing 
power  of  the  court,  as  proclaimed  in  the  case  of  Hadden  v.  Spader,  20 
Johns.  Reports,  was  reversed  ten  to  eight  in  the  Court  for  the  Ccrrec- 
tion  of  Errors;,  26  Wend.  Rep.  66. 

It  was  there  held  by  Senator  Koot  and  the  President  of  the  Senate 
in  an  elaborate  opinion,  in  which  the  majority  concurred  in  opposition 
to  the  expressed  opinions  of  Justice  Cowen  and  Senators  Verplanck 
and  Humpiirey,  that  the  opinions  given  in  Hadden  and  Spader,  that  the 
chancery  power  extended  to  reach  equitable  assets,  simply  in  aid  of  an 
execution  at  law,  was  not  called  for  by  the  case,  that  in  that  as  well 
as  all  cases,  some  known  ground  of  equitable  jurisdiction,  such  as 
fraud,  trust,  &c.  was  coupled  with  the  relief  sought  and  indispensable 
to  such  relief,  in  cases  not  within  the  statute  authorizing  judgment 
creditor's  bills,  and  that  the  statute  was  not  declaratory  but  gave  a  new 
remedy  previously  unknown  to  the  powers  of  this  court,  both  here  and 
in  England,  where  no  such  power  had  existed  or  was  claimed  by  the 
Hig:h  Court  of  Chancery. 

Therefore  that  a  bill  in  the  nature  of  a  creditor's  bill  to  reach  equita- 
ble assets  not  within  the  reach  of  a  tax  warrant,  does  not  lie  at  the 
suit  of  a  county  to  enforce  the  payment  of  county  taxes,  where  the 
warrant  for  collection  has  been  returned  to  the  county  treasurer  un- 
satisfied for  want  of  such  property  as  could  be  levied  on,  and  that  by 
consequence,  a  right  even  in  the  public  might  exist  until  provided  for 
by  the  legislature  without  a  remedy  to  enforce  it  at  law  ur  in  equity. 
Durant  v.  Supervisors  of  Albany  Co.,  26  Wend.  66. 

The  President  of  the  Senate  says,  idem.  p.  91-92,  "that  it  may  be 
objected  that  these  rules,"  (meaning  chancery  powers  which  he  had 
quoted,)  "  leave  the  case  of  a  statute  right  and  an  imperfect  statute 
remedy  without  effectual  relief,  and  that  the  famihar  saying,  that 
'  every  right  has  a  remedy,'  would  therefore  become  the  mere  doctrine 
of  a  beautiful  theory,  rather  than  an  operative  principle  and  useful 
reality.  To  this  I  would  answer  in  the  language  of  Chancellor  San- 
ford  [whose  decision  in  Donovan  v.  Finn,  Hopk.  R.  69,  repudiated  the 
assumption  of  such  a  jurisdiction  prior  to  the  Revised  Statutes,]  ia 
which  he  has  well  said,  that '  the  maxim  that  every  right  has  a  remedy, 
and  that  where  the  law  does  not  give  redress,  equity  will  afford  relief, 


S.  IV.]  NOTE    ON    PARTIES.  402 

Where  a  specific  injury  is  done  by  nuisance  to  individuals  su'iTroF^fpo^D*'. 
resident  or  having  property  in  the  locality   of  the   nuisance,  yJ^^^J!^^!^^^ 
any  of  them  may  file  a  bill  for  relief,  without  making  the  attor-    Mtomej-penc- 
ney-general  a  party,  although  such  nuisance  is  a  nuisance  to  jfs'trTin' a "gen^ 
the  public    generally,  as  well  as  to   those  individuals,     ^f^cra- "i  nuisance. 
cer  v.  London  and  Birmingham  Railwai/  Co77i'pany,  8  Sim.  192,  7 
Law  J.  (N.  S.)  281.     See  also  Semple  v.  Birminghavi  Railway 
Company,  9  Sim.  212.     And  where  an  individual  sustains  spe-    ^^^ 
cial  damage  from  a  nuisance  (as  where  the  goods  in  his  shop  rai,  in  a  suit  to 

°  ^  .         "  _'     abate  a  local  niu- 

are  injured  by  the  smoke  of  a  steam  engine),  he  may  file  a  bill  sance. 
to  restrain  it,  without  making  the  attorney-general  a  party; 
although,  in  the  bill  he  alleges  that  the  nuisance  is  a  nuisance 
to   the  neighborhood,  and  sets  tbrtli  a  letter  written  by  his  so- 
licitor to  the  defendants  on  behalf  of  several  persons  in  the     , 

r  Lessor  and  as- 

neighbourhood.     Sampson  v.  Smith,  8  Sim.  272.     And  to  a  bill  si^eesof  aper- 

°  ,  ,  .  6on  injured  by  a 

by  a  lessee  to  restrain  a  nuisance,  the  lessor  is  not  a  necessary  nuisance. 
party.     Nor  are  the   assignees  of  the    plaintiff",  where  he  is 
an  uncertificated  bankrupt ;  for  an  uncertificated  bankrupt  has 
a  right  against  all  the  world,  except  his  assignees.     Sc77iplew. 
London  a7id  Birmingham  Railway  Company,  9  Sim.  212.  403 

foreign  government  is  a  necessary  party  to  a  suit  instituted  ment,  in  a  suit 
by  alleged  agents  thereof,  for  the  possession  of  property  be-  againstTformer 
longing  thereto,  against  other  persons  who  were  the  agents  "sent. 
thereof,  but  whose  agency  is  alleged  to  have  been  determined. 
S:hneider  v.  Lizardi,  15  Law  J.  (N.  S.)  435,  M.  R. 

To  an  information  against  churchwardens  to  establish    a  ^n**[nfo*rm'a't'io° 
charity,  the  vestry  clerk  may  be  made  a  defendant,  when  he  '?  f.^tabiish    a 
refuses  to  allow  the  relator  to  examine  the  vestry  book.     At- 
torney-general v.  The  Churchwardens  of  St.  Wlargaret's,  West- 
minster, 1  Law  J.  (N.  S.)  127,  V.  C. 

however  just  in  theory,  is  subordinate  to  positive  institutions,  and  can- 
not be  applied  either  to  subvert  establi.shed  rules  of  law,  or  to  give  to 
this  court  a  jurisdiction  hitherto  unknown.'  To  this  I  will  merely  add, 
that  in  many  cases  the  legislature  and  not  the  courts  can  alone  fur- 
nish to  existing  rights  effectual  remedies. 


Suits. 


403  NOTE  ON  PARTIES.  [S.  V. 

X;  Pa*""  ■'o    V.  Parties  to  Suits  for  an  Account,  and  to  Adminis- 

SaiTS   FOR   AN  •  ' 

AcconNTANDTO  TRATION    SuiTS*  (1). 

Administration 

J.  Assignee.     See  Legatees. 

2.  Heir. — The  31st  order  of  August,  1841,  declares,  "  That 
in  suits  to  execute  the  trusts  of  a  will,  it  shall  not  be  neces- 
sary to  make  the  heir  at  law  a  party  ;  but  the  plaintiff  shall 
be  at  liberty  to  make  the  heir  at  law  a  party  where  he  desires 
to  have  the  will  established  against  him."  (See  Marriott  v. 
Marriott,  15  Law  J.  422,  V.  C.  B.) 

*  See  Sections  IX.,  XII.,  XIII.,  and  XIV. 


(1)  Under  the  2  R.  8.  191,  §  154,  which  authorizes  complainant  to 
make  any  person  besides  mortgagor  party,  who  secures  the  debt,  as- 
signee of  a  mortgagor,  guaranteed  by  the  mortgagee  who  assigned  it, 
may  make  him  a  party  to  the  foreclosure,  to  have  a  decree  against  him 
for  any  deficiency  in  the  sale  of  the  mortgaged  premises  in  case  the 
amount  should  not  be  collected  from  mortgagor,  who  would  be  prima- 
rily liable  for  such  deficiency ;  and  if  dead,  his  personal  representatives 
may,  it  seems,  be  made  parties  for  recovering  such  deficiency,  to  be 
paid  in  due  course  of  administration.  But  no  decree  can  be  against 
them  so  as  to  be  executed,  until  an  account  of  assets  is  taken,  or  they 
admit  in  answer  their  sufficiency,  and  where  they  are  unnecessarily 
made  parties  and  put  to  the  trouble  of  an  account,  the  court  may  refuse 
complainant  his  extra  costs  of  taking  the  account  subsequent  to  the 
decree  of  foreclosure.  The  heirs  of  mortgagor  or  guarantor  cannot 
be  made  parties  to  reach  the  realty  for  a  contemplated  deficiency.  To 
do  that  complainant  must  show  the  personalty  exhausted.  Leonard  v. 
Morris  et  al,  9  Paige  R.  91-3,  90. 

In  a.  suit  against  personal  representatives  of  a  deceased  debtor  to  re- 
■cover  a  debt  due  from  his  estate,  it  is  only  necessary  for  complainant 
to  file  bill  in  his  behalf,  and  all  other  creditors  standing  in  the  same 
situation,  where  it  appears  on  the  face  of  bill  that  there  will  be  a  defi- 
ciency ki  the  fund,  and  that  there  are  other  creditors  who  are  entitled 
to  a  ratable  proportion  with  the  complainants,  such  an  allegation  is 
unnecessary  to  enable  the  court  to  make  a  general  decree  for  the  bene- 
fit of  all  the  creditors,  where  the  answer  of  the  defendant  shows  that 
the  estate  is  insolvent,  and  that  there  are  other  creditors  who  have  an 
interest  in  the  fund.  But  that  principle  applies  only  to  a  bill  filed  by  a 
single  creditor,  or  by  several  creditors,  for  a  debt  due  to  them  all.  For 
several  creditors  having  distinct  debts  against  the  estate,  cannot  file  a 
bill  for  their  respective  debts  without  making  all  other  creditors  having 
a  common  interest  with  them  parties,  or  stating  in  the  bill  that  it  is 


S.  v.]  NOTE  ON  PARTIES.  -  403 

3.  Legatees  and  their  assignees  and  personal  Representatives.  ^-  parties  to 
— Where  one  of  several  residuary  devisees  and  legatees  files  Account  and  to 

.    .  .  •'  °  Administration 

a  bill  tor  the  administration  of  the  estate,  the  other  residuary         ^mrs. 
legatees  may  be  served  with  a  copy  of  the  bill  under  the  23rd  ^^^^^^  j 
order,  where  they  and  the  plaintiff'  have  a  common  interest,  tees. 
and  they  have  no  other  interest.     Davis  v.  Davis,  4  Hare,  38S. 

filed  in  behalf  of  themselves  and  of  the  other  creditors  who  have  a 
common  interest  with  them.  Where  a  special  claim  is  made  against 
the  personal  estate  of  decedent,  adverse  to  the  rights  and  interests  of 
his  general  creditors  the  personal  representative  need  only  be  party,  and 
his  duty  is  to  defend  against  the  claim.  A  person  may  be  a  necessary 
party  within  the  rule  requiring  all  persons  interested  to  be  made  parties, 
although  the  proper  decree  may  be  made  as  to  the  subject  matter  of 
litigation  in  his  absence  if  defendant  makes  no  objection.  And  in 
such  case  if  defendant  neglects  to  make  the  objection  by  plea,  answer, 
or  demurrer,  of  want  of  parties  who  are  only  necessary  to  protect  him 
from  further  litigation,  the  court  in  its  discretion  may  refuse  to  sustain 
the  objection  at  the  hearing,  or  to  require  the  cause  to  stand  over  to  add 
new  parties  in  that  stage  of  the  suit.  Upon  a  general  demurrer  to 
bill  by  several,  for  want  of  equity,  the  demurrer  must  be  allowed  unless 
it  appear  that  all  the  complainants  have  an  interest  in  the  subject  mat- 
ter of  the  litigation.  Deas  et  at.  v.  Bouchard  Ex.  and  U.  S.,  10  Paige 
R.  445,  447-449. 

In  a  bill  tiled  by  a  creditor  of  decedent  against  heirs  or  devisees  for 
his  debt  out  of  lands  descended  or  devised,  if  complainant  cannot  as- 
certain and  specify  those  lands  he  may  specify  tlie  fact  in  his  bill  and 
call  on  the  heirs  and  devisees  to  discover  the  lands  devised  or  descended 
to  them  respectively  and  the  encumbrances  thereon,  to  enable  him  to 
reach  those  lands. 

After  the  Revised  Statutes  of  New-York  went  into  operation  and 
before  July,  1837,  the  only  remedy  of  a  creditor  at  large  was  to  file  his 
bill  against  the  heirs  and  devisees.  The  statutes  appear  to  contemplate 
that  each  creditor  bring  a  separate  suit  for  his  own  debt  only,  against  all 
the  heirs  or  devisees.  It  is  not  therefore  necessary  for  complainant 
who  files  a  bill  under  the  statutes  to  make  any  otlier  creditors  parties. 
Parsons  v.  Bawue,  7  Paige  R.  354. 

Where  a  judgment  or  incumbrance  has  been  paid  but  is  fraudulently 
kept  on  foot  by  a  third  person  to  deprive  a  creditor  of  tlie  decedent  of 
his  remedy  against  the  statute  in  lands  of  heirs  or  devisees,  and  by  sale 
of  the  property  for  its  full  value,  it  seems  sucii  third  person  is  a  proper 
and  necessary  party  to  a  suit  against  the  heirs  or  devisees.  But  such 
incumbrancer  is  not  a  necessary  party,  and  therefore  defendants  cannot 
demur.     Parsons  v.  Bowiie  cl  al.,  7  Paige  R.  361,  354. 

34 


403  -  NOTE    ON    PARTIES.  [S.  V- 

V.  Parties  to        But  "  a  person  to  whom  a  legacy  or  an  annuity  is  given,  to 
Account  AND  TO  be  paid  out  of  the  residue,  after  the  death  of  the  legatee  foi 

Administration  ,.^       ^         ,  .  ,  .  _ 

Suits.         life  01  sucli  residue,  IS  not  a  necessary  party  to  a   suit  for  an 
.      ,  administration  of  the  estate  brought  by  leeatees  of  aliquot 

Legatee    or  an-  a  j         i3  1 

nuitant  who  ia  shares  of  the  ultimate  residue."     Fisk  v.  Norton,  1  Hare,  3S1. 

to  be  paid  out  of 

a  residue.  

A  bill  by  creditor  against  heirs  or  devisees  of  real  estate  to  obtain  sat- 
isfaction ofa  debt  against  decedent  under  Revised  Statutes  of  New- York, 
which  cannot  be  filed  till  three  years  after  administration  taken,  if  it  ap- 
pear the  bill  has  been  prematurely  filed,  the  defendant  may  demur  or 
object  in  his  answer,  and  the  bill  will  be  dismissed,  and  if  it  do  not  so  ap- 
pear, defendant  may  bring  up  the  fact  by  answer  or  plea,  and  which  the 
statute  contemplates  must  be  filed  by  each  creditor,  not  by  one  in  behalf 
of  himself  and  all  others;  he  must  allege  in  his  bill  that  the  personal 
estate  of  decedent  was  not  sufficient  to  pay  his  debts,  or  that  after  due 
proceedings  before  the  surrogate  and  at  law,  he  has  not  been  able  to 
fcollect  his  debt  out  of  such  personal  estate,  he  cannot  consistently 
with  the  statute  now  file  a  bill  against  the  heirs  and  personal  represen- 
tatives to  obtain  his  debt.  The  misjoinder  makes  the  bill  multifarious. 
•     Bulls  V.  Genung,  5  Paige  R.  254,  258-9. 

A  bill  against  representatives  of  deceased  partner  for  satisfaction  of  a 
partnership  debt  out  of  decedent's  estate,  the  joinder  of  the  surviving 
partner  with  them  as  a  defendant,  does  not  make  it  multifarious  or  de- 
murrable by  such  representatives.  It  seems  questionable  whether  it  was 
absolutely  necessary  to  m^ke  him  a  party,  but  he,  not  they,  should  make 
the  objection.  He  is  at  least  not  an  improper  party  as  to  them  so  as  to 
make  the  bill  multifarious  on  that  account.  If  no  decree  can  be  made 
against  him,  for  complainants  or  co-defendants,  he  alone  can  make  the 
objection,  and  if  any  decree  could  be  against  him,  it  v.ould  be  for  bene- 
fit of  his  co-defendants  to  relieve  the  estate  or  some  part  from  the 
debt,  in  nature  of  a  decree  for  contribution.  Bulls  v.  Genung,  5 
Paige  R.  265,  254. 

It  is  a  privilege  given  complainant  in  chancery,  to  go  beyond  the 
party  legally  bound,  to  search  assets  in  the  hands  of  others  out  of  which 
his  debt  ought  to  be  paid.  But  if  they  have  no  assets,  and  there  is  no 
other  special  ground  assigned,  they  are  not  proper  parties.  Gobel  v. 
Andruss  et  al.     1  Green's  Ch.  R.  74,  66. 

A  complainant  in  a  suit  for  mere  purpose  of  recovering  a  legacy,  is 
not  bound  to  make  the  representatives  of  a  deceased  co-executor  parties 
when  he  expressly  charges  that  all  the  assets  are  in  the  hands  of  the 
surviving  executor.  Secus,  if  the  co-executor  is  charged  with  assets  or 
when  fraud  or  cijllusion  is  charged  between  the  executors  or  insol- 
vency ;  and  upon  the  same  principle  debtors  to  the  testator  may  be 
made  parties  to  reach  assets  in  their  hands.     Ibid,  73,  66. 


s.  v.] 


NOTE    ON    PARTIES.  403 


If  in  an  administratioh  suit,  instituted  by  the  next  of  kin  of  ^-  p*»ties  to 

•'  bUITS  FOR  AN 

a  testator  at  his  death,  the  question  is,  whether  the  testatorby  Account  andto 
the  words  "  my  next  of  kin,"   meant  his   next  of  kin   at  his 
death,  or  at  a  future  period,  the  person  or  persons   who  may 
by  possibility  be  the  next  of  kin  at  that  future  period,  ought  to  ^^^^  ^  ''^=^" 
be  made  a  defendant  or  defendants,  as  well  as  the  executor. 
TJrquhart  v.  Urquhart,  13  Sim.  613. 
So  where  a  limitation  is  for  the  next  of  kin  or  personal  re-  claimants  under 

"•  .    .  .  a  will,  distnbu- 

presentatives  of  a  settlor,  in  a  due  course  of  administration,  tees  under  a  for- 

T  r  -\  •  Till  mersuit. 

according  to  the  statute  of  distributions,  and  such  settlor  leaves  404 

a  wife  surviving,  and  a  sole  next  of  kin,  and  the  next  of  kin 

files  a  bill  for  the  property  ;  the  wife  of  the  settlor  or  her  next 

of  kin  are  necessary  parties  or  a  necessary  party  ;  and  so  also 

are  persons  to  whom  the  property  has  been  paid   over   in   a 

former  suit.     Kilner  v.  LeacJi,  7  Beav.  202. 

The  assignee  of  a  legatee  is  a  necessary  party  to  a  suit  by     Assi^ee  of  a 
such  legatee  for  the  administration   of  the   testator's   estate,   ^^atee. 
where  the  assignment  took  place  before  the  institution  cf  the 
suit.      Campbell  v.  Dickens,  4  Y.  &  C.  Eq.  Ex.  17. 

And  where  a  residuary  legatee  assigns  his  share   after  the  * 

institution  of  a  suit  for  administering  the  testator's  estate,  but 
before  such  legatee  is  served  with  a  snhjyoena,  the  assignee  is 
a  necessary  party.     Humble  v.  Shore,  3  Hare,  119. 

Where  a  bill  is  filed  for  the  purpose  of  having  the  residue  Personal  repre- 

t>  1  •ii^ii--i-  t-  •     sentative    of    a 

01  a  testator  s  estate  ascertamed,  and  tor  the  distribution  oi  it  legatee, 
among  the  parties  entitled,  the  suit  will  be  defective  for  want 
of  parlies,  if  there  is  nopersonal  representative  of  one  of  them 
constituted  by  the  proper  ecclesiastical  court  in  England,  al- 
though the  bill  states  that  a  person  has  proved  the  will  of  such 
person  in  a  diocesan  cf»urt  not  in  England.  Loicryv.  Fulton, 
9  Sim.  104. 

4.  Partners. — A  surviving  partner  of  a  testator   may   be  {'(."'j^for  hfae^uu 
joined  as  a  co-defendant  with  an  executor  to  a  bill  filed  for  an  fof.""  nccount 

J  against  his  exe- 

account  by  the  residuary   legatees,    and   may  be   thereby  re-  futor. 
quired  to  account  to  them  in  respect  of  the  assets  in  his  hands 
as  a  partner.     Brotosher  v,   Watkins,  1  Russ.  &  M.  277 ;  Da. 
vies  V.  Davies,  1  Keen,  534. 

5.  Personal  representatives  of  the  person  whose  assets  are  the  mfnisfr"^"' nn*!! 
subject  matter  of  the  suit. — In  a  suit  for  a  general  account  and  "°'  "°  "'I'liinis- 

•'  •'  O  Crator  ad  lUtm. 

administration,  the  estate  must  be  represented  by  a  general 


404  NOTE  ON  PARTIES.  [S.  V. 

V.  partiks  to    administrator,    and  not   by   a  mere   administrator  ad    litem. 

Suits  for  an 
Account ANDTo  Qroft  V.   Waterton,  13  Sim.  653. 

Administration  "^  • 

Suits.  An  executor  who  has  not  proved  or  acted  is  not  anecessai'y 

,     party,  even  tboucfh  he  has  not  renounced.    And  it  is  not  neces- 

Executor  wlio    r        .'  '  o 

has  not  proved,  gary  to  allege  thatone  of  two  or  more  executors  has  not  proved, 
in  order  to  exempt  the  plaintiff  from  making  him  a  party.  It 
is  sufficient  if  the  bill  alleges  that  those  who  are  made  parties 
have  proved,  and  are^the  personal  representatives  of  the  tes- 
tator. For  the  fact  of  the  other  person  not  having  proved  may 
be  easily  established  by  the  production  of  the  probate.  Dyson 
v.  Morris,  1  Hare,  413  ;  Daviesv.  Williams^  1  Sim.  5. 

405  Where  a  suit  is  instituted  for  the  purpose  of  securing  a  re- 
L^ntativl c'oMtt-  sidue  remitted  by  an  executor  constituted  in  India,  to  an  agent 
in  a  fuH:  as  tours'?  ^"  ^'^'^  country  for  distribution  amongst  the  parties  entitled, 
sets  originally     jj-  jg  tiecessarv  that  an  administrator  should  be   constituted  in 

or  actually   out  •' 

of  the  jurisdic-  Entjland,  and  made  a  partv  to  the  suit.  Loffan  v.  Fairlie,  2 
tion-  &  '  ,       *■  ....  1 

Sim.  &  Stu.  292.  And  even  where  a  suit  is  instituted  re- 
specting an  unadministered  part  of  a  testator's  estate  which  has 
been  remitted  from  India,  and  is  in  the  hands  of  an  executor  re- 
siding here,  but  constituted  in  India,  a  personal  representative 
constituted  in  England  is  a  necessary  party.  Bond  v.  Graham, 
1  Hare,  482.  And  a  bill  seeking  account  of  the  assets  of  an 
intestate  who  died  in  India,  which  have  been  possessed  by  a 
personal  representative  constituted  by  the  proper  court  there, 
cannot  be  sustained  in  the  absence  of  a  personal  representa- 
tive of  the  intestate  constituted  in  England,  although  it  does 
not  appear  that  the  intestate  had  any  assets  in  England  and 
consequently  no  letters  of  administration  have  been  taken 
out  in  this  country.  Tyler  v.  Bell,  2  My.  &  C,  89.  And  in 
like  manner  to  a  suit  instituted  for  an  account  of  assets  of  a 
testator  possessed  by  an  executor  in  Honduras,  an  executor 
constituted  in  this  country  is  a  necessary  party.  Lewis  v.  Gen- 
tle, 1  Lavi'  J.  (O.  S.)  43,  Ch.  R.  Where,  however,  a  clear 
ascertained  fund  is  remitted  from  abroad  by  an  executor  to  a 
person  in  England,  to  apply  it  for  the  benefit  of  the  legatees 
thereof,  the  court  will  determine  the  respective  rights  of  the 
several  legatees,  without  having  a  legal  personal  representa- 
tive of  the  testator  before  the  court,  if  the  consignee  is  a  par- 
ty to  the  suit ;  at  least  if  no  objection  be  made  by  the  defend- 
ants on  the  ground  of  the  personal  representative  not  being 
made  a  parly.     Arthur  v.  Hughes,  4  Beav.  506, 


s.  v.] 


NOTE  ON  PARTIES.  •  405 


6.  Personal  representative  and  assignees  of  a  personal  repre-  ^^^^I'^l  ^ 
sentative  of  the  individual  whose  assets  are  the  subject  matter  of  adm°n"tbI?xon 
the  suit. — Where  a  bill  is  filed  against  executors  who  proved  y^l^^^V^^^y 
their  testator's  will  and  possessed  his  assets  in  India,  and  the  personal  repre- 
bill  seeks  to  charge  them  with  a  loss,  and  one  of  theno  dies  in  * |"nd'o7  In  ^n- 
India,  and  his  executor,  who  proved  his  will  ^nd  possessed  his  aian  executor, 
assets  there,  and  afterwards  came  to  England,  is  made  a  party 

to  the  suit,  it  is  not  necessary  that  a  personal  representative 
in  England  of  the  deceased  executor  should  also  be  before  \\e 
court.     Anderson  v.  Counter,  2  M.  &  K.  763.. 

In  an  administration  suit  against  a  surviving  executor,  it  is  pet8olS*^rep?e^- 
not  necessary  to  bring  before  the  court  the  assignees   or  per-  ^g°e*a'^ed^  bank* 
sonal  representatives  of  a  deceased  bankrupt  executor,  all  of  rupt  executor, 
whose  estate  has  been  administered  under  the  commission.  406 

Masters  v,  Barnes,  2  Y.  &  C.  Ch.  C.  616. 

Where  an  aofent  is  employed  by  two  executors,  the  survivor  Personal  repre- 

o  r      J  J  '  8entative8    of   a 

of  them  may  file  a  bill  against  such  agent  for  an  account,  with-  deceased  execu- 

''  °  °  tor,  in  a  suit  by 

out  making  the  personal  representatives  of  the  deceased  exe-  »  surviving  ex- 

,  ,  ecutor     against 

cutor  parties  to  the  suit.     Slater  v.  IVheler,  9  Sim.  156.  an  agent. 

7.  Pur clMsers.— Where   a  bill  is  filed  by  the  next  of  kin  of  r,i\t'byTexi°of 
an  intestate  against  his  administrator  and  others,  praying  that  ^a°e°*who '°hld 
an  account  may  be  taken  of  the  rents  and  profits  received  by  contracted  to 
the  administrator  of  estates  contracted  by  the  intestate  to  be 

sold  to  different  purchasers,  and  agreed  by  the  heir-at-law  to 

be  given  up  to  the  next  of  kin  in  case  the  purchase  contracts 

should  be  set  aside,   and  also  praying  that  the  balance  after 

deducting  the  administrator's  disbursements  may  be  invested 

and  secured  for  the    plaintiffs  and  the    other  persons   entitled 

thereto,  and  that  a  receiver  may  be   appointed  ;  in  such  case 

the   purchasers  are   necessary  parties.     Fii'st,  because   other-  • 

wise  the  administrator  would  be  obliged  to  render  the  same 

account  twice — once  to  the  next  of  kin  (admitting  them  to  be 

entitled  to  what  they  seek,)  on   the  ground  that   the  plaintiffs 

may  not  be  able  to   recover  the   purchase  monies,  unless  the 

rents  are   properly  accounted  for   and   applied — and  once  to 

the  purcliascrs,  to  whom,  if  the  contracts  are  valid,  the  rents 

and  profits  belong.      Secondly,  because  the  purchasers  would 

not  be  bound  by  the  acts  of  the  receiver  without  being  ]»arties 

to  the  cause.     And   thirdly,  because   the   court  does  not  take 

possession  of  a  fund,  without  having  the  owners  of  it  parties 

to  the  suit.     Lumsden  v.  Eraser,  1  My.  &  C.  589. 


406  •  NOTE    ON    PARTIES.  [S.  VI. 

V.  Parties  to        Other  Parties. — Although  upon  a  bill  for  a  general  account 

Suits  for    an  ore 

Account  AND  TO  between  two  persons,  a  question  arises  whether  certain  items 

Ad.ministhation  .  •  1  •     1 

Suits.  ought  to  be  charged  against  one  of  them  or  against  a  third 
Partv  to  a  bill  pe'Son  with  whom  they  had  mutual  dealings  it  does  not  fol- 
for  an  account  ]o^  tij^t  such  third  person  is  a  necessary  party.     Darthez  v. 

Clements,  6  Beav^  165. 
Co-plaintiff  hav-     ,In  a  suit  for  an  account,  a  person  may  be  made  a  co-plain- 
muelntere^t™'   tiff,  if  he  has  an    interest  in  the  taking  the  account,  however 

mi^iute  such  interest  may  be.     Smith  v.  Farr,  8  Law  J.  (N.  S.) 

Ex.  Rep  46. 
Plaintiff  in  a  suit       The  administrator  ought  not  to  be  sole  plaintiff  in  a  bill 
Sg rearassets!^   f"''  administering  an   intestate's  real  assets,  under  the"statute 

3  &  4  W.  IV.  c.  104.     Tubly  v.  Tuhhy,  2  Coll.  Ch.  C.  136. 
A   person  who       ^  pei'son  who  has  improperly  obtained  a  part  of  the  assets 

has  possession  of  '  .  .  n  y        ' 

partofanothers  from  executors,  by  setting  up  a  deed  of  assignment  of  the  pro- 
perty to  himself,  may  be  made  a  party  to  a  bill  against  the 
executors  for  the  administration  of  the  estate,  even  without 
any  charge  of  collusion  or  insolvency.  Consett  w.  Bell,  1  Y. 
&  C.  Ch.  C.  569. 


407 


Parties  in  a  suit  '    If  two  individuals  are  entitled  to  rents,  the  one  up  to  a  cer- 

for  an    account        ..  -i     i  ^  p-  ^         ^        i  i 

of  rents.  tain  time,  and  the  other  aiterwards,  the  latter  alone    cannot 

file  a  bill  for  an  account  of  the  rents  accrued  during  the  whole 
period,  without  making  the  former  a  party,  although  he  may 
allege  that  he  has  satisfied  the  demands  of  the  former.  Att. 
Gen.  V.  Pearson,  7  Sim.  290. 

VI.  PiETiEs  TO         VI.    Parties  to  Suits  pertaining  to  the  relation 

Suits    pertain-         ,  *  /    \  * 

iNG  to  the  re-  of  Assignor  and  Assignee*  (1). 

LATioN     OP    As- 
signor  AND    As-  .  c        •       1  I'll! 

siGxVEE.  The  assignor  of  a  judgment,  as  having  the  legal  estate,  is  a 

»     7^^      r     necessary  party  to  a  suit  by  the  assignee  respecting  it,  although 

Assignor  of  a  .;r.'  .'  o  ro'  o 

judgment  in  a  g,  power  of  attorney  to  sue  is  contained  in  the  assignment.    Par- 
suit  by  the  as-       ^  •'  ° 

signee.  tington  V.  Bailey,  6  Law  J.  (N.  S.)  179  ;  M.  R. 

*  See  note  to  p.  398. 

(1)  Assignee  of  the  right  of  dower  may  state  the  assignment  and  sue 
in  her  own  name,  but  the  right  to  be  perfected  is  still  assignor's,  and  be- 
ing legal  not  equitable,  is  subject  to  the  incidents  which  the  law  at- 
taches, and  among  them  the  legal  rule  for  applying  the  statute.  The 
case  is  as  if  thedowress  was  plaintiff.  Wilson  et  ux.  v.  McLenaghan, 
1  McMiillan  Eq.  Cases,  S.  Carolina,  39,  35. 

Parties'  demur-       C.  &.  H.,  insolvent,  assigned  all  their  property  to  an  assignee  in 
rer. 


S.  VI.]  NOTE     ON     PARTIES.  407 

If  a  person    entitled  to   purchase   money  or  compensation  g^'j^f^p^^"  ^° 
money  to  be  ascertained  by  the  award  of  a  commissioner  un-  i^"  '^o  the  kk- 

•^    _  •  •'  LATION      OF      AS- 

der  an  inclosure   act,    assigns    away    his   interest  before   the  signor  and  As- 

^  •'  _  SIGNEE. 

award,  he  is  not  a  necessary  party  to  a  suit  by  the   assignee  V.-^'V^^fci^ 
for  the  recovery  of  the  money  ;   because  before  the  award,  he  peSon^'^or"' 
had  only  an  equitable  right  to  it,  and  after  the    assignment  of  purchase  money 
that,  no  interest  remained,  to  him.     Cator  v.  The  Croydon  Ca- 
nal Company,  4  Y.  &  C.  Eq.  Ex.  405. 

trust,  to  pay  debts,  and  re-assign  surplus  if  any,  or  hold  it  on  such 
trusts  as  they  appointed  ;  the  assignors,  or  their  representatives,  are 
necessary  parties  to  a  suit  of  the  creditors  of  C.  &  H.  ajiainst  the 
executor  of  the  assignee  for  an  account,  as  they  had  a  coinmoi  or 
connected  interest  with  the  complainants  in  taking  the  account  of  the 
application  of  the  assigned  property;  but  \vh"re  defendants  had  not 
taken  the  objection  that  the  assignors  liad  not  been  made  parties,  either 
by  his  demurrer  upon  the  record  or  ore  lenus  at  the  hearing,  it  could 
not  be  taken  upon  an  appeal  from  the  order  overruling  the  demurrer. 
Dias  el  al.  v.  Bouchard,  Executor,  <^c.  and  U.  S.,  10  Paige  R.  445.  But 
if  the  objection  for  the  nonjoinder  was  not  taken  or  pointed  out  by  the 
demurrer  put  in,  nor  ore  lenus  at  the  hearing  it  cotild  not  on  appeal 
from  the  order  overruling  the  demurrer.  Dlts  elal.  v.  Bouchard,  Exe- 
cutor, cj-c,  and  the  United  Slates,  10  Paige  Ch.  R.  446,  458-9. 

When  there  is  an  assignment  to  pay  debts  and  re-assign  surplus,  the 
creditors  of  assignor  on  bill  for  account  against  the  assignees,  should 
join  the  assignors  as  parties,  as  tiiey  had  a  common  or  connected  interest 
with  complainants  in  taking  account  of  the  npplication  of  the  assigned 
property,  but  demurrer  for  want  of  parties  should  point  out  the  neces- ' 
sary  parties  either  by  name  or  msuch  manner  as  to  point  out  to  com- 
plainant the  objection  to  his  bill,  and  thus  enable  him  to  amend  ;  cites 
Mitford  180,4th  London  edition.  The  rule  thus  given  by  Lord  Redes- 
dale  has  been  doubted,  4  Myl.  &.  Craig.  32,  sed  vid.  1  Dan.  Ch.  Pr. 
386.  But  in  adherence  to  the  spirit  of  the  rule  as  laid  down  hy  Lord 
R.,  the  demurrer  must  point  out  the  necessary  parties  by  name  in  refe- 
rence to  some  statement  of  their  names  in  the  bill,  or  by  their  charac- 
ters as  the  heirs,  devisees,  personal  representatives,  assignees,  creditors, 
&c.,  of  some  of  the  persons  named  or  referred  to  in  the  bill.  Ibid. 
447,  454,  465. 

The  complainants  in  this  court  must  be  the  real  parties  in  interest 
where  a  case  in  action  is  absolutely  assigned.  Tlie  assignee  of  a  judg- 
ment or  chose  in  action  cannot  file  a  bill  in  name  of  assignor  who  has 
parted  with  all  his  interest  in  the  subject,  and  is  a  mere  nominal  com- 
plainant.    Field  v.  Maghee,  6  Paige  R.  640,  639. 


407  NOTE  ON  PARTIES.  [S.  VL 

SDm^p^ERTAiN"  ^^  ^  ^^  instituted  to  compel  the  raising  of  portions,  for 
iNG  TO  THE  RE-  wlucli  a  tcrm  had  been  created  under  a  settlement,  the  person. 

LATION     OF      As-  '  ,  i 

8IGN0R  AND  As-  to  whom  such  term  has  been  assigned  in  trust  for  a  mortgagee 

SIGNF.E.  .  _  ^  ^  O     O 

V^^'V^^^  with  notice  of  the  trusts  of  the  settlement,  is  a  proper  party 
teraf°a^nd  term^  ^"''  ^^®  Original  termor  is  not  a  necessary  party.  Young  v 
or,  in  a  suit  to  j^ofd  Waterpurk,  8  Law  J.  (N.  S.)  214,  V.  C. 

raise  portions.  -»  '  \  /  ' 

Though  at  law  an  assignment  might  be  valid  to  transfer  the  value 
of  the  property,  or  right,  if  no  fraud,  but  where  an  assignee  seeks  the 
aid  of  the  court  of  equity  to  enforce  his  claim,  the  court  will  examine 
into  the  consideration  of  the  assignment,  nature  and  value  of  the  fund, 
or  estate  assigned,  and  the  relation  of  the  parties,  for  the  purpose  of 
doing  that  equity  which  the  circQmstances  may  require  and  will  get, 
and  an  assignment  as  improvidently  obtained  where  an  undue  advan- 
tage has  been  taken  of  a  person  ignorant  of  his  rights  and  unapprized 
of  the  nature  of  his  claim,  and  especially  will  the  court  examine  into 
the  character  of  the  transaction  when  the  parties  stand  in  the  relation 
of  guardian  and  ward,  or  parent  and  child.  Hence,  a  bill  by  a  father 
to  obtain  a  fund  held  in  trust  by  will,  of  his  son,  who  on  going  to  sea 
assigned  it  for  apparently  valuable  consideration,  it  was  held  that  the 
son  and  his  minor  child  should  be  parties,  and  that  complainant  must 
prove  the  consideration,  the  court  regarding  the  assignment  in  equity 
good  only  for  the  amount  advanced.  Haskell  v.  Codman,  8  Metcalf 
Mass.  R.  543-4,  536. 

A  creditor  to  carry  into  effect  an  assignment  of  debtors'  property, 
and  to  obtain  his  share,  the  other  creditors  provided  for  in  tlie  assign- 
ment should  be  parties  or  the  bill  be  filed  in  behalf  of  complainant, 
and  all  others  who  may  choose  to  come  in  under  the  decree,  p.  33.  But 
if  a  judgment  creditor  is  acting  in  hostility  to  the  assignment,  and  is 
seeking  to  set  it  aside,  on  ground  that  assignee  is  endeavoring  to  re- 
tain the  property  of  debtor  under  an  assignment  fraudulent  and  illegal, 
in  such  case,  the  creditor  cannot  file  bill  in  behalf  of  himself  and  those 
whose  claims  he  is  opposing,  p.  33.  It  is  not  necessary  for  him  to 
make  the  creditors  so  provided  for  in  the  assignment,  parties.  In  suit 
to  set  aside  an  assignment  as  fraudulent,  it  is  sufficient  to  make  the 
fraudulent  assignors  and  assignees  parties,  p.  34. 

Assignees  in  trust  for  creditors  are  considered  so  far  entitled  to  re- 
present the  interest  of  all  the  creditors  provided  for  in  the  assignment, 
as  to  be  permitted  to  file  a  bill  in  their  own  names  relative  to  the  trust 
estate  without  making  those  creditors  parties,  p.  34.  Wakeman  v. 
Glover  et  al,  3  Paige  R.  33,  34,  23.  Affirmed  on  appeal  from  Ch. 
11  Wend.  R.  187. 

So  far  as  to  property,  on  which  no  creditors  has  a  lien  by  judgment 
or  execution,  a  creditor  may  file  bill  for  his  own  benefit,  without  other 
creditors  standing  in  same  situation  as  parties.     Ibid.  33.*- 


S.  VI.]  NOTE  ON  PARTIES.  407 


TO 
PERTAIM- 


Where  a  defendant  assigns  the  subject-matter  of  a  suit  after  p/Zits'^^'^t 
the  bill  is  filed,  but  before  the  subpoena  is  served,  the  assifjnee  ''"^  '^°  "'^  "* 

t  ■  r>  LATION      OF      As 

is  a  necessary  party.     Powell  v.  Wright,  7  Beav.  444.  sio.nor  and  As- 

•'■'•'_  .  SIGNER. 

Where  a  partner  in  two  distinct  firms  assigns  his  share  to  a  V^^'^V^^^ 
co-partner  in  those  firms,  who  undqrtakes  to  indemnify  the  as-  defendant  "be-* 
signor  against  the  liabilities  of  those  firms,  a  suit  may  be  insti-  ^'^V  ^^''^'"'^^  °*^ 

'^  o  '  •'  subpoena. 

tuted  by  the  assifjnor  affainst  the  executors  of  the  assignee  for  f.arti'er  and  de- 

*         _•'  °  a  a  visees     of    real 

a  specific  performance  of  the  agreement,  and  for  an  account  estote. 
and  payment  of  what  is  due  to  the  assignor  in  respect  of  the 
unpaid  consideration,  and  of  a  sum  to  which  one  of  the  firms 
was  indebted  to  the  assignor,  and  of  the  debts  paid  by  him 
against  which  he  was  to  be  indemnified  by  the  assignee  :  and 
in  such  case  a  partner  in  the  firm  who  was  so  indebted  to  the 
assignor  is  not  a  necessary  party  ;  nor  are  the  devisees  of  the 
real  estate  of  the  assignee,  where  the  bill  charges  that  his  per- 
sonal assets  are  sufficient  for  payment  of  his  debts,  although  he 
charges  his  real  estate  with  payment  of  his  debts  ;  for  his  per- 
sonal estate  is  primarily  liable.  Morrallv.  Pritchard,  6  Jur.  408 
966,  V.  C.  W. 

VII,  Parties  to  Suits  affecting  Persons  having  a       vii.  parties  to 

.Suits  AFFECTING 

Community  of  Interest*  (1).  Pbrsons  having 

^    '  A  Community  OK 

Interest. 

1.  Statutory  mode  of  suing. — Some  of  the  shareholders  of  v-^'V^^*-' 

.     .  ,  ^     t     M^      p     1  ■,  1    R'"   of  some   of 

a  joint-stock  company  may  sue  on  belialt  oi  themselves   and  the  sharchoiacrs 

1  1  1  1      1  1  .    /■  I  f  ii-  I        ot'acom])any,on 

the  Other  shareholders,  tor  the  purpose  or    compelling    the  bohaif  of  thom- 
chairman  and  directors  of  the  company  to  refund  monies  im-  ers^'nga^nst  "the 
properly  drawn  by  them  from  the  company  and  applied  to  di'rettors'  ^^ 
their  own  use,  notwithstanding  an  act  of  parliament  passed  for 
the  regulation  of  the  company  provides  that  all  proceedings 

*  See  Sec.  XIV.,  XY.     See  note  to  p.  398.  . 


(1)  A  subscriber  to  a  joint-stock  corporation  who  complains  of  an  Bill,  parties, 
inequitable  distribution  of  the  stock,  and  seeks  to  reach  stock  im- 
properly assigned  or  apportioned  to  others,  should  file  his  bill  in 
behalf  of  himself,  and  all  other  Pubscribcrs  standing  in  the  same 
situation,  unless  the  bill  shows  they  have  relinquished  their  rights. 
After  distribution  of  stock,  the  commis.'-ioncrs  of  apportionment  are 
not  the  trustees  of,  and  do  not  represent  the  interests  of,  other  persons 
to  Vi^hoin  the  stock  is  distributed.      It  seems  the  storkholders  them- 


^^^  NOTE    ON   PARTIES.  [S.  VII. 

Suits  AFFECTING  ^V  ^^  ^^  behalf  of  the  company,  against  any  person  or  per- 
!commun;Vvof  ^ons,  whether  a  member  or  members  of  the  company  or  not, 
y^^^^^^^;^^  shall  be  carried  on  in  the  name  of  the  chairman  or  of  one  of 
the  directors :  for  such  an  enactment  does  not  apply  to  such  a 
case  as  that  above  mentioned,  where  the  chairman  and  direct- 
ors are  themselves  the  parties  amenable  to  the  proceedings. 
Hichens  v.  Congreve,  4  Russ.  562. 

selves,  so  far  as  known,  should  be  parties  to  suit  which  is  to  affect 
their  rights,  prior  to  the  orgECnization  of  the  company  by  the  election 
of  directors.  Ibid.  Walker  v.  Devereaux,  4  Paige  R.  246-7,  229,  cites 
Egberts  v.  Wood,  3  Paige  R.  520. 

Parties  on  single  bill  to  stay  proceedings  at  law,  all  the  defendants 
at  law,  if  the  defence  was  common  to  all,  or  went  to  the  whole  cause 
of  action  against  any  of  defendants,  are  necessary  parties.     Paterson 
V.  Bangs,  9  Paige  R.  634,  627. 
Certainty, relief,       A  more  liberal  cast  is  allowable  in  pleadings  in  equity  than  at  law. 
shouW^not  be     And  though  it  has  been  held  that  tlie  like  certainty  should  proceed  in 
surprised.  both,  (see  Alitford,  285,)  yet  in  general,  certainty  to  a  common  interest, 

a  reasonable  certainty  suflScient  to  prevent  the  adversfe  party  from 
being  taken  by  surprise,  is  all  that  equity  requires.  In  setting  out  the 
title  on  which  the  case  rests,  defendant  should  be  distinctly  informed 
of  the  nature  of  the  case  which  he  is  to  meet.  Although  setting  forth 
the  title  in  alternatives  may  not  be  sufficient,  yet  where  the  title  to  re- 
lief will  be  precisely  the  same  in  each  case,  the  bill  may  be  brought 
with  a  double  aspect,  and  the  plaintiff  may  aver  facts  of  a  different 
nature  which  will  equally  support  his  application.  Story  Eq.  R, 
5  254 ;  Story  Eq.  PI,  5  240  to  255,  258,  and  note ;  1  Chitty  on  Plead, 
as  to  the  doctrine  of  certainty. 

Every  fact  essential  to  his  title  to  maintain  his  bill  and  obtain  relief, 
must  be  stated  in  the  bill,  for  no  facts  are  properly  in  issue  unless 
charged  in  the  bill,  and  of  course  no  proof  can  be  generally  offered  of 
^  facts  not  in  the  bill,  nor  relief  granted  for  matters  not  charged,  though 

^  they  appear  from  other  parts  of  the  pleadings  and  evidence,  for  the 

court  decrees  secundum  allegata  et  probata.  The  reason  is,  that  the 
defendant  may  be  apprized  by  the  bill  what  the  suggestions  and  al- 
legations are  against  which  he  is  to  prepare  his  defence.  Story  Eq. 
PI.  \  257. 

So  in  England  a  judgment  creditor's  bill,  seeking  to  enforce  his  se- 
curity against  defendant's  equitable  interest  in  freehold,  must  allege 
an  elegit  sued  out,  or  a  bill  alleging  defendants  had  goods  of  the  debtor 
and  praying  discovery,  must  aver  execution  sued  out  on  the  judgment, 


S.  VII.]  NOTE    ON    PARTIES.  408 

And  wher^an  act  of  parliament  for  forminfj  a  ioint-stock  ^"-  Partieb  to 

r  O  J  SUITS  AFFECTINO 

company  authorizes  all  suits  on  behalf  of  the  company  against  Febsons  having 

^        *'  I        •'   ^  aCommunittof 

any  person  to  be  prosecuted  in  the  name  of  the  chairman ;       Intrrest. 
and  in  all  proceedings  in  which  it  would  have  been  necessary  gin  ^^  ^  ^^^^^^ 
to  state  the  names  of  the  shareholders,  it  is  made  sufficient  to  ^a^y  "a^nsTa 
state  the  name  of  the  chairman  only  ;  the  act  does  not  autho-  member. 
rize  suits  by  the  chairman  against  a  member  of  the  company, 
but  only  against  a  stranger,  without  making  the  other  mem- 
bers parties.     Macmahoti  v.  Upton,  2  Sim.  473.         :• 

for  until  then  the  goods  were  not  bound  by  the  judgment,  and  conse- 
quently he  would  have  no  title  to  the  discovery.  Story  Eq.  PI.  257, 
4th  ed.  Though  plaintiff  has  an  interest  in  the  subject,  yet  if  not 
a  property  title  to  sue,  demurrer  lies.  Want  of  interest  in  the  subject 
of  suit,  or  of  fllle  to  institute  it,  are  objections  to  bill,  to  any  kind  of  re- 
lief, or  for  discovery  merely.  Mitf.  156-7,  cited  Story's  Eq.  PI. }  260-1. 
There  must  also  be  sufficient  averments  to  show  that  defendant  also 
has  an  interest  in  the  subject  matter,  and  is  liable  to  answer  to  plaintiff 
therefor.  Milf.  160.  For  plaintiff  may  have  interest  in  the  subject 
and  right  to  sue,  yet  have  no  right  to  call  on  d -fendant.  This  may  be 
for  want  of  privity  between  them.     Story,  J  262. 

So  if  the  right  is  founded  on  defendant  having  notice,  it  musf  be 
charged  directly,  else  it  is  not  matter  in  issue  on  which  the  court  can 
act,  and  if  the  notice  is  to  be  proved  by  confessions  to  witnesses,  it 
seems  proper,  and  as  decided  in  England,  indispensable  to  give  on 
the  bill  dates  of  same  and  names  of  witnesses.  Id.  ^263,  and  see 
264.  The  rule  is  now  established  in  England,  that  if  bill  relies  on 
confessions,  conversations  or  admissions,  written  or  oral,  as  proof  of 
facts  charged,  as  for  example  fraud,  what  such  confessions,  &c.,  must 
be,  must  be  expressly  charged,  and  to  whom  made,  else  the  proof  is 
inadmissible.  The  ground  is,  that  otherwise  defendant  may  be  taken 
by  surprise  and  entrapped,  since  he  cannot  know  that  any  such  evi- 
dence is  intended,  as  the  interrogatories  put  by  plaintiff  to  witnesses 
are  not  made  known  to  him.  But  the  doctrine  is  denied  in  Smith  v. 
Burnham,  2  Sumner's  R.  612,  and  held  that  it  is  the  generally  received 
impression  in  America,  that  it  is  only  necessary  as  to  the  facts  to  be  put 
in  issue  to  charge  the  facts  in  the  bill,  but  not  to  state  all  the  materials 
of  proof  and  testimony  by  means  of  which  those  facts  are  to  be  sup- 
ported. The  authority  of  Hallv.  Mallhij,  is  not  of  sufficient  authority 
for  the  doctrine.  And  the  cases  of  Whetley  v.  Martin,  3  Beavan's  R. 
226,  and  Graham  v.  Cluse,  Id.  124,  are  very  much  qualified  by  V.  C. 
Wigram  in  Malcolm  v.  Scott,  3  Hare  R.  39, 63.     Story,  {  265,  a. 

This  is  the  principle  on  which  the  insufficiency  of  ambiguous  state- 


408  NOTE  ON  PARTIES.  [S.  VIL 

Mi'iTs^AFPECTiNG       Where  the  majority  of  the  proprietors  of  a  company  incor- 
Pbrbons HAVING  Doratedbyact  of  parliament,  at  a  special  general  meeting 

A  Community  OF   ^  •'  *  '  i  o  o 

Interest.  assembled,  are  empowei'ed  by  the  act  to  institute  proceedings, 
Biiioftwomem-  ^^^  ^^  them  Cannot  file  a  bill  on  behalf  of  themselves  and 
porated"°om°ai  "^^'^^^^  against  the  directors,  impeaching  transactions  which 
ny,  on  behalf  of  may  possibly  be  regarded  by  theot  her  proprietors  as  benefi- 
others.  cial  to  the  company.     Foss  \.HarboUle,  2  Hare,  461. 


ments  has  been  put.  The  title  must  be  stated  with  sufficient  particu- 
larity and  detail  to  enable  defendant  to  meet  the  case  upon  some 
definite  issue.     lb. 

So  general  certainty  is  sufficient  in  equity  pleadings,  though  general 
charges  in  a  bill,  unaccompanied  by  specific  acts  of  fraud  error  or  ac- 
count, &c.,  is  insufficient,  yet  it  does  not  follow  that  plaintiff  mu&t  set 
forth  all  the  minute  facts ;  the  general  statement  of  a  precise  fact  is 
often  sufficient  and  the  circumstances  to  confirm  or  establish  it  need 
not  be,  but  often  are,  charged,  for  they  more  properly  constitute  matters 
of  evidence  than  of  allegation.     Chitty  on  PI.  J  261-3-4. 

It  is  a  general  rule,  that  what  is  essential  to  plaintiff's  rights,  and 
necessarily  within  his  knowledge,  must  be  alleged  positively  and  with 
precision.     Story  Eq.  PI.  5  255. 

Even  when  the  fact  rests  within  the  knowledge  of  the  defendant,  if 
it  constitute  a  material  allegation  in  the  bill,  and  is  the  foundation  of 
the  suit,  it  must  be  clearly  stated.     Id.  §  256. 

But  by  the  rule  of  the  late  court  of  chancery  in  New- York,  facts 
might  be  alleged  positively,  or  on  information  and  belief,  and  the  statute 
was  framed  to  meet  such  mode  of  allegation,  that  is,  that  the  bill  was 
true  of  his  own  knowledge  except  such  matters  as  were  stated  on  in- 
formation or  belief,  and  of  those  that  he  believed  them  to  be  true.  By 
the  new  code  of  procedure,  the  plaintiff  states  his  case  in  his  com- 
plaint in  plain  language,  without  any  other  guide  as  to  the  nature 
of  his  averments  in  point  of  positiveness.  All  he  has  to  swear  to  is 
his  belief.     Code,  tit.  12. 

The  bill  should  not  be  what  is  technically  termed  multifarious.  Mitf^ 
181.  Story,  J  271,  That  which  appears  in  Mitford  under  demurrer  is 
transferred  by  Story  under  bills. 

Several  judgment  creditors  may  unite  in  one  bill  against  their  com- 
mon debtor  and  his  grantee  to  remove  impedi.ments,  for  the  fraud  in 
such  case  affects  all  and  they  may  j  ^intly  sue,  and  all  the  defendants 
are  implicated  in  degrees  and  proportions  and  may  be  jointly  sued. 
Brinkerhoff  v.  Brown,  6  Johns.  C.  R.  130 ;  Ch.  Kent,  id.  157,  says,  "  the 
principle  to  be  deduced  from  these  cases,  is  that  a  bill  against  several 
must  relate  to  matters  of  same  nature,  and  having-  a  connection  with 


S.  VII.]  NOTE  ON  PARTIES.  408 

2.  Persons  suing  and  being  sued  on  behalf  of  themselves  and  ^J'ts  affe'^Jg 
others,  where  there  is  no  statutory  mode  of  suing  or  defending. —  ^c"oMMUNi*/y  uf 
"  It  is  the  duty  of  the  court  to  adapt  its  practice  and  course  of  ij^ii^^i^i/ 
proceeding,  as  far  as  possible,  to  the  existing  state  of  society,  Duty  of  meeting 
and  to  apply  its  jurisdiction  to  all  those  new  cases,  which  ^^  the^lftere^d 
from  the  progress  daily  making  in  the  affairs  of  men,  must  con-  "'"^  °'  society, 
tinually  arise  ;  and  not,  from  too  strict  an  adherence  to  form 
and  rules  established  under  very  different  circumstances,  de- 
clineto  administer  justice,  and  to  enforce  rights  for  which  *' 

there  is  no  other  remedy."    Lord  Cottenham,  C,  in  Taylor  v, 
Salmon,  4  My.  &  C  142. 


each  other,  and  in  which  all  the  defendants  are  more  or  less  concerned, 
tlioiigh  their  rights  in  respect  to  the  general  subject  of  tiie  case  may 
be  distinct."  So  in  Fellows  v.  Fellows,  4  Cow.  R.  682 ;  S.  T.  9  Paige, 
595,  60  ;  see  also  5  Id.  65 ;  1  Sandford,  366.  Story  Eq.  PI.  5  286,  n.  2, 
says,  without  meaning  to  question  the  doctrine  in  6  Johns.  C.  R.  and 
4  Cow.  R.,  it  may  be  doubted  whether  there  are  any  English  authori- 
ties that  fully  carry  out  the  proposition  or  are  easily  reconcilable. 

If  one  of  two  having  common  interest  in  the  relief  sought  against 
a  joint  contract  (as  where  one  was  a  surety  and  the  other  a  principal  to 
an  usurious  note,  and  the  bill  was  filed  by  the  surety  against  the  holder 
for  usury  to  restrain  him  from  proceeding  at  law  on  the  note,  and  the 
principal  or  maker  of  the  note  being  made  also  defendant,  to  which 
the  holder  put  in  a  special  demurrer,  on  ground  that  the  maker  of  the 
note  was  made  defendant  instead  of  complainant)  the  court  held  that 
if  one  of  two  having  a  common  interest,  refuses  to  join  in  filing  a  bill, 
the  other  may  make  him  a  defendant  alleging  in  the  bill  as  an  excuse 
for  doing  so  that  he  would  not  consent  to  join  as  a  complainant,  or 
stating  some  other  excuse  for  making  him  defendant  instead  of  com- 
plainant. If  the  bill  does  not  state  such  excuse  the  other  defendants 
may  demur,  but  as  it  is  an  objection  of  form,  the  bill  may,  of  course,  be 
amended  on  the  usual  terms.  Morse  v.  Hovey  and  another,  9  Paige  R. 
198,  197. 

A  bill  in  Massachusetts  under  Revised  Statutes,  c.  44,  by  a  creditor 
against  an  insolvent  bank,  is  substantially  a  bill  for  the  benefit  of  all 
creditors,  and  plaintiff"  has  no  power  to  discontinue  it.  ^llas  Bank  v. 
Ts'ahanl  Bank,  23  Pick.  480. 

Where  separate  judgments  and  unsatisfied  executions  were  against 
drawer  and  endorser  of  a  note,  it  seems,  one  creditor's  bill,  may  without 
the  risk  of  demurrer  for  multifariousncst;,  as  both  judgments  are  for 
same  debt,  even  where  some  costs  were  in  each  judgmept  for  uhicii 


409  NOTE  ON  PAJITIES.  [S.  VII. 

vii.  Parties  TO      i«  The  court  in  conformity  with  the  principles  of  equity  has 

SUITS  AFFECTING  *"  .  „ 

PERSONS  HAVING  adoptcd  3  pencral   rule,  not  to  dispose  of  any  matter,  not  to 

ACoMMUNITyOF  TO  ,  T         i  •  r  > 

Interest.      bind  any  man's  interest,  or  make  any  declaration  or  any  man  s 
^-^V*^^"^  right  in  his  absence.     The  complication  of  human  affairs  has, 

Doctrine  of  re-       o  ^  _ 

presentation.      howevcr,  become  such,  that  it  is  impossible  always  to  act 
strictly  on  this  general  rule.     Cases  arise  in  which  if  you  hold 


the  defendants  in  the  other  were  not  liable,  be  filed  against  both  (show- 
ing to  excuse  costs  that  the  endorser  has  assets  over  $100.)  but 
the  judgment  creditor  is  not  bound  to  file  his  bill  against  them  jointly. 
If,  however,  he  unnecessarily  pursues  the  endorser  separately,  when 
he  knows  or  has  reason  to  believe  the  maker  has  ample  means  to  pay, 
and  that  his  property  might  be  reached  by  a  joint  bill  against  both,  he 
will  not,  it  seems,  be  allowed  his  costs  of  the  separate  bill,  Austen  et 
al.  V.  Figueira,  1  Paige  R.  56,  58-9. 

A  bill  to  enforce  a  trust  created,  as  it.  may  be  for  the  benefit  of 
Parties.     Credi-  .  .  ,,,..,,.  ■  ,    ,  , 

tors.    General     tbird  persons,  they   being  certain  schedulfed  creditors,  it  was    held 
praicip  e,a  par-  ^^^^  ^jj  ^^^^  ^^.^^  ^^  jj.  ^^^  ^^^^^  ^^  brought  by  one,  it  be  f  t  the  benefit 

of  all. 

It  is  true  that  a  creditor  whose  remedy  at  law  has  been  exhausted, 
may  in  certain  cases,  file  a  bill  for  his  own  benefit  only,  and  without 
making  other  creditors  standing  in  the  same  situation  parties.  But 
when  he  seeks  to  carry  into  eflcct  an  assignment  in  trust  for  the 
benefit  of  creditors,  and  to  obtain  his  proportion  of  the  trust  fund,  he 
is  bound  to  make  all  the  creditors  parties;  or  some  of  tliC  creditors 
may  sue  in  behalf  of  themselves,  and  the  other  creditors  who  may  come 
in  and  obtain  satisfaction  of  their  demands  equally  with  the  plaintiffs 
in  the  suit.  And  if  they  decline  to  close  they  will  be  excluded  from 
Jhe  benefit  of  the  decree,  and  will  neverthele.-s  be  bound  by  the  acts 
done  under  its  authority,  (citing  Mitford  PI.  135;  Edmenston  v.  Lyde, 
1  Paige,  637,  and  other  authorities.)  The  form  of  proceeding,  while  it 
prevents  delay  and  the  multiplicity  of  suits  which  are  never  to  be  en- 
\  couraged,  furnishes  the  court  at  once  with  the  means  of  administering 

equal  justice  to  all  parties  interested.  Bryant  v.  Russel,  23  Pick.  R. 
Mass.  522-3,  508. 

A  bill  for  injunction  and  relief  against  judgment  at  law;  a  plea  of 
judgment  in  law  supported  by  answer  if  not  replied  to,  will  be  consid- 
ered as  true  on  argument.  •  Cammann  v.  Ex'r  of  Trapiagan,  Saxton 
Ch.  R.  (N.  J.)  30,  28. 

While  care  must  be  taken  to  bring  all  proper  parties  before  the 

rioueness.  court,  equal  care  should  be  taken  that  none  are  brought  there  whose 

rights  are  not  to  be  in  some  way  bound  by  the  decree  that  may  be  made. 


S.  VII.]  NOTE    ON    PARTIES.  409 

it  necessary  to  brine  before  the  court  every  person  having  an  ^"-  P^iTiee  to 

•/  O  J     tr  O  SUITS  AFFECTING 

interest  in  the   question,  the  suit  could  never  be  brought  to  a  persons  having 

'■  .  °  A  Community  or 

conclusion.  The  consequence  would  bo  that  if  the  court  ad- 
hered to  the  strict  rule  there  would  in  many  cases  be  a  denial 
of  justice.     This  has  induced  the  courts  to  sanction  a  ralaxa- 


So  too,  while  the  court  will,  for  sake  of  avoiding  multiplicity  of  actions, 
take  cognizance  of  suits  in  which  many  rights  having  reference  to  one 
subject  matter  are  united,  it  must  be  careful  not  to  admit  several  plain- 
tiffs to  demand  by  one  bill,  several  matters  perfectly  distinct  and  un- 
connected. The  rules  of  pleading  in  a  court  of  equity  are  not  so 
technical  and  precise  as  in  the  courts  of  law.  The  general  powers 
of  this  court  and  its  peculiar  modes  of  administering  relief,  authorize 
and  require  a  greater  degree  of  liberality  than  would  be  expedient  in 
the  courts  of  common  law.  Still  when  principles  have,  by  repeated 
adjudications,  become  setihd,  and  especially  when, they  are  founded  in 
justice  and  the  fitness  of  things,  it  is  qui  e  as  important  that  those  prin- 
ciples should  be  preserved  in  this  as  in  any  other  court.  Marselis  et 
al.v.  The  Morris  Canal  tf-  Bankinu:  Co.,  Saxton  Ch.  R.  (N.  J.)  35,  31. 
When  a  number  of  persons  claim  one  right  in  one  subject,  one  bill 
may  be  sustained  to  put  an  end  to  suits  and  litigation.     Idem.  36. 

The  cases  w  here  unconnected  parties  may  join,  are  where  there  is 
one  common  interest  in  them  all  centering  in  the  point  in  issue.  Id.  36. 
Lord  Redesdale,  in  Whaley  v.  Dawson,  2  Sch.  &  Lef.  367,  held  this 
principle,  where  there  was  a  general  right  claimed  by  the  bill  covering 
the  whole  case,  the  bill  would  be  good  though  defendants  had  separate 
and  distinct  rights  ;  but  if  the  subjects  of  the  suits  were  in  themselves 
perfectly  distinct,  a  demurrer  would  be  sustained.     Id.  36,  37. 

In  Coop.  Eq.  Pi.  182,  the  rule  is,  the  court  will  not  permit  several 
plaintiffs  to  demand  by  one  bill  several  matters  perfectly  distinct  and 
unconnected  against  one  defendant,  nor  one  plaintiff  to  demand  several 
matters  of  distinct  natures  against  several  defendants.  Id.  37.  The 
principle  there  laid  down  in  Cooper  is  the  correct  one.     Id.  38. 

A  bill  by  sureties  of  custom-house  bond  paid  by  them  to  be  substi- 
tuted for  the  obligees  in  e.ich  bond,  and  to  settle  their  rights  to  priority 
out  of  the  principal  debtor's  esta'e,  all  perrons  standing  in  like  situa- 
tion with  complainants  should  be  parlies,  or  the  bill  should  be  filed  in 
behalf  of  complainants  and  all  others  who  were  sureties  on  bonds 
given  by  the  debtor  for  duties  and  paid  them, so  as  to  be  entitled  to  be  sub- 
rogated to  the  ri-hts  and  remedies  of  the  United  States  against  the  as- 
signed fund.  Dias  ei  al.  v.  Bouchard  Ex'r  and  U.  S.,  10  Paige  R. 
447,  456-6. 


409  NOTE    ON    PARTIES.  [S.  VII. 

VII.  Parties  to  jJ(,jj  ^f  jj^g  rule.     And   accordingly  they  have  said,  if  we  can 

SUITS  AFFECTING  b    J  J 

Pebbons  HAVING  be  Satisfied  that  we  have  before  the  court  persons  whose  inter- 

aCommunityof  _  '■ 

Interest.  ests  are  the  Same  as  the  interests  of  those  who  are  absent,  we 
will  be  content  to  hear  the  cause  upon  the  argunnent  of  such 
persons.  And  if  we  are  then  satisfied  that  the  case  has  been 
fairly  and  honestly  pi'esented,  we  will  order  the  distribution 
of  the  fund  on  the  representation  of  the  persons  present,"  but 
without  binding  the  absent  parties,  so  far  as  to  cut  them  off 
from  all  chance  of  correcting  any  error  which  in  consequence 
of  their  absence  may  have  been  made  to  their  prejudice. 
Lord  Langdale,  M.  R.,  in  Powell  v.  Wright,  7  Beav.  449,  450. 
See  also  his  Lordship's  remarks  in  Richardson  v.  Hastings,  7 
Beav.  323. 

The  adjudication  in  the  absence  of  some  of  the  persons  in 
these  instances  does  not  depend  upon  the  fact  of  there  being 
any  actual  representation  of  the  absent  persons.  For  they 
may  be  perfectly  ignorant  of  the  proceedings  :  and  in  case 
those  who  are  brought  before  the  court  are  defendants,  they 
are  selected  by  the  plaintiff,  and  not  by  the  absent  persons. 
"  It  is  a  rule  of  necessity  or  convenience  ;  and  nothing  is  more 
vague  :  for  the  court  is  under  the  necessity  of  considering  the 
circumstances  of  each  case  and  the  degree  of  difficulty  in  the 
proceeding." — The  fact  would  seem  to  be,  that  there  is  no  ac- 
tual representative  existing  as  a  ground  for  the  adjudication  in 
the  absence  of  persorfe  interested  ;  but  that  there  is  a  virtual 
and  constructive  representation  for  the  purposeof  the  adjudica- 
tion, as  the  result  of  considerations  of  necessity  or  convenience 
and  community  of  interest.  Necessity  or  convenience,  com- 
bined with  community  of  interest,  and  not  representation,  is 
the  criterion  for  deciding  whether  such  adjudication  shall  take 
place.  See  Powell  v.  Wright,  7  Beav.  446,  447,  450,  and 
Smart  v.  Bradstock,  7  Beav.  501. 
Mode  of  treat-  Since  the  rule  as  to  dispensing  with  the  presence  of  per- 
]ect.°  ^^  *"  sons  as  actual  parties  on  the  record  is  so  "  vague,"  and  the 
"  court  is  under  the  necessity  of  considering  the  circumstan- 
ces of  each  case,"  it  will  obviously  be  highly  desirable  for  the 
safe  guidance  and  the  convenience  of  the  practitioner,  to  in- 
corporate the  material  circumstances  of  each  case  into  specific 
placita,  rather  than  to  state  propositions  couched  in  more 
general  terms.     This  remark,  indeed,  applies  with  more   or 


S.  VII.]  NOTE    ON    PARTIES.  410 

less  force  to  the  whole  subject  of  equity  pleadings  ;   but  it  is  yj.',/*"jt!.j° 
peculiarly  applicable  to   the  subject  of  parties,  and   perhaps  i'ersons  hamno 

*  .  ..  ..  A  COMMlMTy  O? 

most  especially  to  that  part  which  is  comprised  in  the  present       Intkuist. 
section. 

Where  there  are  numerous  appointees  (thirty-seven  for  in-  Appointees    re- 

^  ,    f.       T  .  presenttd. 

Stance)  they  may  be  represented   as   defendants  to  a   suit  by 
some  on  behalf  of  all.     Milbank  v.  Collier,  1  Coll.  237. 

A  bill  may  be  maintained  by  a  mortgagee  on  behalf  of  him-  g/nted?'^"^^^'^^ 
self  and  all  other  creditors  of  a  deceased  mortgagor.  Skeij  v. 
Bennett,  2  Y.  &  C.  Ch.  C.  405.  In  like  manner  the  assignee  of 
a  specialty  creditor  may  file  a  bill  on  behalf  of  himself  and  all 
other  creditors  for  the  execution  of  the  trusts  of  an  act  of  par- 
liament providing  for  the  payment  of  debts  out  of  real  estates. 
Batten  v.  Barfitt,  2  Y.  &  C.  Ch.  C  34'3.  And  a  bill  to  carry 
into  execution  the  trusts  of  a  deed  of  trust  for  the  payment  of 
joint  and  separate  debts,  may  be  filed  by  a  separate  creditor 
of  one  debtor,  on  behalf  of  himself  and  all  other  the  joint  and 
separate  creditors,  where  it  appears  from  tlie  deed  that  they 
are  very  numerous,  without  making  them  personally  parties, 
although  they  have  all  executed  the  deed.  Wdd  v.  Bonham, 
2  S.  &  S.  91. 

Where  trustees  of  an  estate  for  the  improvement  of  a  town  inhabitant*  of  a 

^  town  repreient- 

are  empowered  by  act  of  parliament  to  levy  a  rate  in  case  the  b'^- 
rents  of  such  estate  prove  deficient  for  that  purpose,  an  infor- 
mation and  bill  may  be  filed  by  some  of  the  inhabitants  on 
behalf  of  themselves  and  the  others,  against  the  trustees,  for 
an  account  and  for  an  injunction  against  the  rate.  Att.  Gen. 
V.  Heelis,  2  S.  &  S.  67. 

Again,  where  two  members  of  a  club  have  possessed  lliem-  Meniber*  of   » 

11-  ^   •     ■     r  '^^^^   repreient- 

seives  01  property  belongmg  to  the  club,  and  it  is  ffjr  the  com-  ed. 
mon  intei'est  of  the  club  that  this  property  should  be  brought 
within  the  control  of  the  governing  body  ;  a  bill  may  be  filed 
by  one  member  on  behalf  of  himself  and  all  others,  except  the 
defendants,  for  that  purpose  alone,  without  determining  any 
thing  respecting  the  distribution  thereof  when  brought  within  41X 

the  control  of  the  governing  body;  but  leaving  it  open  to  fu- 
ture litigation  in  that  respect ;  and  this  will  be  the  case,  even 
where  the  club  has  been  dissolved,  but  its  affairs  have  not 
been  wound  up.  Richardson  v.  Hastings,  7  Beav.  323.  And 
where  funiituro  belonging  to  a  club  is  vested  in  a  trustee,  up- 

35 


411 


NOTE    ON    PARTIES. 


[S.  VII. 


vii.  e^rties  to 
suit^Rtecti.vg 
Persons  having 
aCommunitv  of 
Interest. 


Newspaper  pro- 
prietors repre- 
sented. 


Next  of  kin  re- 
presented. 


Pew  holders  re- 
presented. 


412 


on  trust  to  sell,  and  to  repay  the  amount  subscribed  by  certain 
members,  parties  to  the  deed,  and  borrowed  of  other  persons, 
also  parties  to  the  deed,  for  the  purchase  of  the  furniture 
and  to  pay  the  surplus  to  the  committee  for  the  benefit  of  the 
club,  a  bill  may  be  filed  against  certain  members  of  the  com. 
mittee  who  have  improperly  sold  the  furniture  and  retained 
the  proceeds,  by  one  of  the  subscribing  members  on  behalf  of 
himself  and  all  the  other  members  of  the  club,  other  than  the 
defendants,  instead  of  making  the  parties  to  the  deed  or  the 
other  members  of  the  club  actual  parlies  to  the  suit.  Rich- 
ardson V.  Hastings,   7  Beav.  301. 

But  where  twelve  out  of  thirty-eight  proprietors  of  a  news- 
paper file  a  bill  on  behalf  of  themselves  and  all  other  proprie- 
tors, except  the  defendant,  and  it  is  not  perfectly  clear  that  the 
suit  is  for  the  benefit  of  all  the  proprietors,  and  the  defendant 
insists,  in  his  answer,  that  the  other  proprietors  should  be  made 
parties,  and  alleges  that  the  suit  had  been  commenced  without 
their  sanction,  and  contrary  to  the  wishes  of  several  of  them, 
the  court  will  order  the  cause  to  stand  over,  with  liberty  to 
amend  by  adding  parties.  Bainbridgev.  Burton,2'Bea,v.539. 
When  the  object  of  a  suit  is  to  determine  the  question  of 
the  right  to  a  residue  as  between  the  next  of  kin  as  a  class 
and  a  person  claiming  under  a  will,  and  not  to  distribute  a  re- 
sidue, it  is  sufficient  if  some  only  of  the  next  of  kin  are  par- 
ties. Caldecott  v.  Caldecott,  Cr.  &  P.  183.  And  in  cases 
where  next  of  kin  are  very  numerous,  and  the  property  is 
small,  and  the  questions  are  such  that  no  reasonable  doubt  can 
be  entertained  respecting  them,  the  court  will  make  a  decree 
adversely  td  them,  though  but  one  of  them,  having  the  same 
interest  as  the  rest,  is  a  party  to  the  suit.  Bunnct  v.  Foster^  7 
Beav.  540.  And  so  where  the  next  of  kin  and  their  repre- 
sentatives are  numerous,  and  there  are  no  representatives  of 
some  of  them  who  have  died,  and  the  greater  portion  (five- 
ninths,  for  instance)  of  the  interest  of  the  next  of  kin  is  repre- 
sented in  the  suit,  the  presence  of  the  others  will  be  dispensed 
with.     Harvey  v.  Harvey,  4  Beav.  215. 

Again,  a  bill  may  be  filed  by  two  persons  on  behalf  of  them- 
selves and  all  other  persons  (except  the  defendants)  who  at 
the  time  of  an  alleged  breach  of  the  trust  upcni  which  a  church 
is  held,  were,  or  at  the  time  of  the  filing  of  the  bill  are,  or  are 


S.  VII.]  NOTE  ON  PARTIES.  412 

entitled  to  be,  holders  of  seats  or  pews  in  a  church,  or  voters  ^'"-  Partjes  to 

^  BniT8  AFFECTING 

at  the  election  of  a  minister,  where  the  object  of  such  bill  is  to  Persons  having 

,        .  ''  Ti^.     •  A  Community  OF 

obtain  relief  in  respect  of  such  breach  of  trust,      milligan  v.       interilst. 
Mitchell,  3  My.  &  C.  72.  *  V.-^^V^^^ 

One  of  a  numerous  class  of  residuary  legatees   twen  tysix  Residuary  lega- 

/••  \.iii  1  -T  iiif>r>i-  tees     represent- 

lor  instance)  will  be  also  permitted  to  sue  on   behalf  of  hun-  ed. 
self  and  all  others  entitled  as  residuary  legatees.     Harvey  v. 
Harvey,  4  Beav.  215. 

So  a  bill  may  be  filed,  even  during  the  existence  of  the  part-  shareholders  re- 

*  .  presented. 

nership,  by  some  of  the  shareholders  of  a  numerous  company, 
on  behalf  of  themselves  an  1  the  others,  except  the  defendant, 
for  the  realization  of  their  common  assets,  and  for  the  appli- 
cation thereof  to  their  legitimate  purpose.  Wahcorth  v.  Hott, 
4  M.  &C.  619. 

Indeed,  a  bill  may  be  filed  by  an  individual  shareholder  in 
a  numerous  company,  on  behalf  of  himself  and  the  majority 
of  the  shareholders,  against  the  company  and  a  certain  num- 
ber of  the  shareholders  and  directors  thereof.  Preskm  v. 
Guyon,  5  Jur.  146,  V.  C.  E. 

And  one  of  the  shareholders  of  a  canal  is  entitled  to  file  a 
bill,  on  behalf  of  himself  and  the  other  shareholders,  against 
the  commissioners  appointed  for  putting  into  execution  the 
Act  under  which  the  canal  was  made,  to  set  aside  an  agree- 
ment entered  into  by  them  contrary  to  the  provisions  of  thp 
Act :  for  a  bill  to  enforce  the  due  exercise  of  the  powers  ves- 
ted in  the  commissioners  by  the  Act,  and  to  avoid  a  breach  of 
trust,  must  be  intended  to  be  in  its  nature  beneficial  to  every 
shareholder.     Gray  v.  Chaplin,  2  S.  &  S.  267. 

So  where  a  few  of  the  partners  in  a  numerous  dissolved 
company  have  been  appointed  trustees  to  wind  up  its  affairs, 
they  may  sue  on  behalf  of  the  company  to  recover  a  debt. 
Gordon  v.Py?n,  3  Hare,  223. 

And  a  bill  to  set  aside  a  policy  may  be  filed  by  the  direct- 
ors of  an  insurance  company  who  signed  the  policy,  on  behalf 
of  themselves  and  all  other  shareholders  without  making  the 
Other  members  of  the  board  of  directors,  by  whom  the  affairs 
of  the  company  are  managed,  parties  to  the  bill.  Bather  v. 
Walters,  8  Beav.  92.  And  a  bill  may  also  be  filed  by  the  trus- 
tees who  are  also  some  of  the  directors  of  an  insurance  com- 
pany, against  the  other  directors,  who   are  also  shareholders 


413  NOTE  ON  PARTIES.  [S.  VIL 

VII.  Partiksto  of  the  company,  and  against  the  trustees  of  another  company, 

SUITS  AFFECTING  .^'  ,.  °,  ,,  ,,  -li  n 

PERSONS  HAVING  to  Set  asule  a  policy  effected  by  tlie  latter  with  the   nist-men- 

aCommunitvof      .  ,    .      ,  1  U  ..1, 

Interest.  tioned  company  :  and  it  is  not  necessary  to  make  the  other 
members  of  the  respective  companies  parties,  where  they  are 
very  numerous,  and  where  the  bill  states  that  their  names 
and  places  of  abode  are  unknown  to  the  plaintiffs.  Fenn  v. 
Craig,  3  Y.  &  C.  216. 

If  a  person  files  a  bill  against  a  railway  company,  it  is  suffi- 
cient to  make  the  provisional  committee  and  directors  parties 
to  the  suit,  if  they  all  oppose  the  claim  of  the  plaintiff  iw  toio, 
and  the  plaintiff  alleges  that  the  number  of  the  shareholders 
is  so  great,  and  the  shares  so  fluctuating,  that  he  cannot  make 
them  parties  to  the  suit.     Parsons  v.  Spooner,  15  Law  J.  155, 

V.  c.  w. 

And  if  the  managing  committee  of  a  railway  company,  hav- 
ing monies  in  their  hands  applicable  to  the  discharge  of  liabili- 
ties of  the  company,  pay  off  the  whole  or  a  part  of  a  debt, 
due  from  the  company,  and  then  the  person  to  whom  such 
debt  is  due  brings  an  action,  as  a  trustee  for  the  company, 
against  a  shareholder  for  the  amount  of  such  deht,  the  court 
of  chancery  will  restrain  the  creditor  and  the  committee  from 
prosecuting  such  action  or  any  other  action  against  such 
shareholder,  and  from  disposing  of  the  assets  except  in  pay- 
ment of  the  liabilities  of  the  company;  and  the  rest  of  the 
shareholders  need' not  be  parties,  where  the  bill  alleges  that 
they  are  very  numerous,  and  that  their  interests  are  identical 
with  those  of  the  committee.  Levns  v.  Billing,  10  Jur.  851, 
V.  C.  E. 

Where  a  bill  is  filed  by  a  few  shareholders  of  a  very  nu- 
merous unincorporated  company,  on  behalf  of  themselves  and 
all  other  shareholders,  except  the  defendants,  seeking  to  be 
relieved  from  the  payment  of  certain  calls  which  are  alleged 
to  have  been  fraudulently  made,  but  have  been  paid  up  by 
the  other  shareholders,  and  for  an  account  and  dissolution  of 
the  company,  it  is  not  sufficient  to  make^  the  directors,  trus- 
tees, and  secretary,  defendants  ;  for  they  are  bound  to  have 
an  equal  mind  towards  the  plaintiffs  as  well  as  the  other 
shareholders,  and.  cannot  properly  be  considered  as  represen- 
tino-  an  opposition.  It  is  necessary  that  a  suffic  ent  number 
of  the  oher  shareholders  should   be   made  defendants,  in  or- 


S.  VII.]  NOTE    ON    PARTIES.  413 

der  to  discuss  the  questions  freely  and  unrestrainedly.     Rich-  ^Vtb^ajfe'ctinq 
ardson  v.  Larpent,  2  Y.  &  C,  507.  J'ebsons  having 

And  a  suit  cannot  be   instituted  against  the   committee  by      Intf.rkst. 
three  of  the  partners  in   a  numerous   trading  company  alone, 
and  not  on  behalf  of  themselves  and  the  other  partners,  upon 
a  point  in  which    all  the  partners  are   materially  interested  ; 
^s,  for  example,  for  the  liberty  of  inspecting  the  documents  414 

of  the  company,  which  might  be  prejudicial  to  the  company, 
by  disclosing  its  affairs  to  partneis  connected  with  a  rival 
company,     Baldwin  y.  Lawrence,  2  Sim.  &   Slu.  18. 

Where  a  suit  is  instituted  for  the  payment  of  a  sum  of  mo- 
ney, in  the  nature  of  a  debt,  due  to  the  whole  body  of  the 
shareholders,  of  a  company,  the  suit  may  be  instituted  by  one 
of  the  shareholders  on  behalf  of  himself  and  all  the  other  share- 
holders. And  in  such  case,  although  the  payment  be  claim- 
ed from  the  directors,  who  are  made  defendants  for  that  pur- 
pose, it  is  correct  not  to  except  them  out  of  the  number  of  the 
shareholders  on  whose  behalf  the  bill  is  expressed  to  be  filed; 
because  they  are  not  sued  as  shareholders,  but  as  directors  ; 
and,  in  their  character  of  shareholders,  they  would  be  entitled 
to  participate  in  the  fruits  of  the  suit.  Mocatta  v.  Ingilhy, 
5  Law  J.  (N.  S.)  145,  M.  R. 

And  in  like  manner  where  two  or  more  shareholders  in  a 
numerous  joint-stock  company  sue  on  behalf  of  themselves 
and  all  other  shareholders,  and  one  of  the  shareholders  has 
acted  as  agent  of  the  company,  the  plaintiffs  may  sue  on  his 
behalf  in  his  character  as  shareholder,  although  they  also 
make  him  a  defendant  in  his  character  of  agent.  Taylor  v. 
Salmon  4  My.  &  C.  134  ;  Robinson  v.  Smith,  3  Paige's  Ch. 
R.  33 :i  ;   Walker  v.  Deveraux,  4  Paige's  Ch.  R.  229. 

The  court  will  not  restrain  the  registration  of  a  deed  of  as- 
signment of  shares  in  a  railway  company,  on  a  bill  filed  by 
a  shareholder  on  behalf  of  himself  and  the  other  shareholders 
without  the  shareholders  whose  shares  are  assigned  being 
made  parties  to  the  suit ;  for  as  the  suit  tends  to  prolong 
their  liabilities,  they  ought  to  be  parties.  Grcathead  v.  The 
London  and  South-Western  Railway  Company,  10  Jur.  343. 

It  will  have  appeared   from  the   preceding  cases,  that   "  in  notneccwwyto 
order  to  entitle  a  plaintiff  to  sue  on  behalf  of  himself  and   all  repreBenuUon. 
others  who  stand  in  the  same  relation  with  him  to  the  subject 


414  NOTE  ON  PARTIES.  [S.  VIL 

vii.  Pahties  to  of  the  suit,  it  must  appear  that  the  relief  sought  by  him  is  in 

SUITS  AFFECTING    .  I  r>      •  O  ^ 

Persons  HAVING  its  nature  beneficial  to  all  those  whom  he   undertakes  to  re- 

A Community  OF  ,  ^  ^        ■        ,~i  /-<t        t       ^  ci      o      c^ 

Interest.  present.  (bu"  J  ohn  Leach,  in  uray  \.  L/iaphn,  2  b.  &  o. 
272.)  But  so  long  as  the  relief  must  be  beneficial  to  all,  it  is 
not  necessary  that  all  should  approve  of  the  suit;  on  the  con- 
trary, in  that  case  it  would  seem  that  in  general  it  will  not  be 
a  valid  objection  to  a  suit  so  constituted,  even  if  the  majority 
disapprove  of  the  suit;  for  if  all  could  not  be  personally  made 
parties  on  account  of  their  number,  it  would  amount  to  a  de- 
nial of  justice  to  those  who  were  desirous  of  suing,  if  the  dis- 
approbation of  the  others  were  an  effectual  obstacle  to  a   suit 

415  °"  their  behalf.  And  indeed  it  might  open  a  door  to  a  fraud- 
ulent connivance  on  the  part  of  some  parties  interested  and 
transactions  which  are  injurious  to  the  rest. 

Hence,  where  acts  are  necessarily  injurious  to  the  common 
interest  of  a  large  number  of  persons,  a  few  of  them  may  in- 
stitute a  suit  for  relief  on  behalf  of  themselves  and  the  rest, 
although  the  majority  approve  of  those  acts,  and  disapprove  of 
the  institution  of  the  suit.  And  in  this  case,  as  distinguished 
from  the  case  of  the  whole  body  concurring  in  an  abuse,  the 
attorney-general  need  not  be  a  party  to  the  suit.  Bro7nley  v. 
Smith,  1  Sim.  8. 

Indeed  a  bill  may  be  filed  by  a  member  of  a  numerous  in- 
corporated company,  on  behalf  of  himself  and  all  other 
members  of  the  company,  except  the  defendants,  to  impeach 
a  transaction,  although  it  was  the  act  of  a  unanimous  meeting 
of  the  company,  some  of  whom  are  not  defendants,  and  are 
consequently  included  in  the  number  of  those  on  whose  behalf 
the  bill  is  filed.  For  the  expression  of  suing  on  behalf  of  all 
the  other  members  is  merely  a  mode  of  expressing  that  the 
plaintiff  sues  in  a  general  right.  Preston  v.  The  Grand  Col- 
lier Dock  Company,  11  Sim.  327. 

And  where  a  bill  is  filed  by  some  of  the  shareholders  in  a 
rejected  and  abandoned  railway  scheme,  on  behalf  of  them- 
selves and  all  other  shareholders,  except  the  defendants,  who 
were  the  provisional  committee,  and  it  alleges  that  the  interests 
of  the  shareholders,  except  the  defendants,  were  identical  with 
those  of  the  plaintiffs,  and  that  none  of  them,  except  the  de- 
fendants, had  interests  adverse  to  or  differing  from  those  of 
the  plaintiffs,  it  is  not  demurrable  for  want  of   parties   or  for 


S.  VII.]  NOTE  ON  PARTIES.  415 


misioinder,  althouorh  it  prays  for  an  account,  and  that  certain  Y""  "'-^"'f'^s  ^o 

•t  '  o  r      J  '  Suits  AFFECTING 

expenses  improperly  incurred  may  be  paid  by  the  defendants,  Persons  having 
and  not  out  of  the  deposits,  and  that  the  surplus  of  the  depo-  Interest. 
sits,  after  payment  of  expenses  properly  incurred,  may  be  ra- 
tably distributed  among  the  subscribers  ;  and  although  it  states 
that  the  majority  of  the  shareholders  sanctioned  the  improper 
expenditure  ;  and  that  some  of  the  shareholdei  s,  whose  names 
were  unknown  to  the  plaintiffs,  had  not  paid  any  deposits. 
Apperley  v.  Page,  10  Jur.  998,  V.  C  B.  But  see  Lund  v. 
Blanshard,  supra,  pp.  400,  401. 

3.  Suits  in  which  there  is  no  statutory  mode  of  suing  or  defend-  shareholders 
ing,  but  all  persons  having  a  community  of  interest  need  not  he  '^P^"**^  ^"  • 
made  parties,  eiilier  personally  or  hy  representation. — Some  of 
the  shareholders  in  a  joint-stock  company  may  file  a  bill  for 
there-payment  of  the  deposits  on  their  shares,  on  the  ground 
of  fraud,  without  making  the  other  shareholders  parties,  if 
they  allege  that  they  are  ignorant  of  the  names  of  such  other 
shareholders.     Blainv.  Agar,  2  Sim.  289. 

And  to  a  bill  filed  against  a  director  of  a  banking  company  A1.Q 

by  a  purchaser  of  shares  allotted  to  that  director,  praying  that 
the  sale  maybe  set  aside  on  the  ground  of  fraudulent  repre- 
sentation made  by  the  directors  and  their  agents,  the  other 
partners  were  not  necessary  parties.  Stainbank  v.  Fcrnley, 
9  Sim.  556. 

And  to  a  bill  for  the  recovery  of  shares  in  a  company,  the 
owners  of  the  other  shares,  if  not  interested  in  the  shares  sought 
to  be  recovered,  are  not  proper  parties.  Turner  v.  Hdl,  Tur- 
ner V.  Tyacke,  and  Turner  v.  Borlase,  11  Sim.  1,  16,  17. 

Where  a  lessee  of  a  mine,  after  selling  shares  thei-ein  to 
several  persons  as  a  mining  company,  subsequently  sells  the 
entire  interest  therein  to  certain  persons  as  trustees  for  a  new 
mining  company  to  be  formed,  he  receiving  part  of  the  consi- 
deration in  shares  in  such  new  company,  and  the  sale  is  made 
by  him  without  the  knowledge  of  a  person  who  is  one  of  the 
shareholders  in  the  original  mining  company,  but  afterwards 
accounting  to  all  the  others  ;  that  person  may  file  a  bill  against 
him,  without  making  the  trustees,  or  the  other  shareholders 
in  the  original  company,  or  the  shareholders  in  the  new  com- 
pany, parties  to  the  suit,  if  the  contest  does  not  affect  those 
individuals  or  the  corpus  of  the  property,  but  only  the  lessee 


416  NOTE    ON   PARTIES.  [S.  VII. 


SDiT.fju'F"cTiNG  ^"^  ^^^  particular  interest ;  the  shares  being  transferable  by  a 
^^n^^Jlr  '"\'''''  delivery  of  the  certificates,  and  the  bill  seeking:  a  share  of  the 

A  Community  OF  •'  '  .  o 

I^moRK8^^^  profits  and  purchase  money  received  by  the  defendant  from 
the  new  company,  or  a  transfer  of  a  number  of  the  shares 
therein  belonging  to  the  defendant  equivalent  to  the  amount 
of  the  plainliff's  interest  in  the  original  company.  Mare  v. 
Malachy,  1  My.  &  C.  559. 
ed^iii°profit7dis-  Where  under  an  agreement  a  person  is  entitled  to  a  share 
pensed  with.  of  the  clear  profits  of  a  company,  but  the  directors  of  the  com- 
pany are  to  have  the  exclusive  management  of  its  affairs,  he 
is  not  a  necessary  party  to  a  suit  respecting  dealings  between 
the  directors  and  a  third  party.  For  although  he  has  an  in- 
terest in  the  ultimate  profits  of  the  concern,  he  has  no  interest 
in  any  particular  transactions,  otherwise  than  as  they  affect 
the  general  account  on  which  the  ultimate  profits  are  shown. 
Benson  v.  Hadfield,  5  Beav.  546. 
Suit  by  trustees  ^  guit  cannot  be  instituted  by  trustees  of  a  company  alone, 
and  not  on  behalf  of  themselves  and  the  other  members  for  a 
specific  performance  of  an  agreement  for  a  lease  to  them,  al- 
though the  agreement  did  not  state  that  they  were  members 
of  the  company.     Douglas  v.  Horsfall,  2  S.  &  S.  184. 

a  community^  of      ^'  ^^^^^  ^'"'  w'/i^c^  «^^  ^^0  belong  to  a  Company  OT  class  must  he 
interest  person-  personally  made  parties. — Some  members  of  a  numerous  com- 

ally    made   par-  -^  -^  -^ 

ties.  pany  or  class  may,  as  we  have  seen,  institute  a  suit,  on  behalf 

^■*- '  of  themselves  and  all  other  members,   to  have  the  accounts 

taken  in  which  they  are  jointly  interested. 

In  the  case  of  a       But  twenty  creditors  is  not  SO  great  a  number  that  the   in- 
few  creditors.  "^  ,  , 

convenience  of  making  them  parties  should  lead  the  court  to 

allow  the  interests  of  all  to  be  represented    by  some   of  them 

Harrison  v.  Stewardson,  2  Hare,  530. 
Assignors  of  de-       Again,  the    assignees  of  deposits   on  the  shares  in  a  joint 
posisons  ares.  g^Q(.j.  (.Qf^p^ny  cannot  sue  on  behalf  of  themselves   and  their 

assignors  ;  but  the  latter,  however  numerous,  must  be  parties 

to  the  suit.     Blain  v.  Agar,  1  Sim.  37. 
All  the  share-       ^^d  where  a  bill  is  filed  to  have  the  company  dissolved, 

holders  of  a  r       j  > 

company,   in  a  even  thouffh  its  business  may  have  ceased,  or  to  have  its  affairs 

Buit  for  a  disso-  °  •' 

lution  or  for      wouud  Up,  even  though  it  had  been  previously  dissolved  ;  it  is 

winding  up  their  ^  ="  ,  .  .  , 

aflfairs.  necessai'y  that  all   the  shareholder3,-if  possible,  should  be  per- 

sonally made  parties,  however  numerous  they  are,  if  their  in- 
terests may  be   conflicted.     Decks  v.  Stanhope,    14  Sira.   57  ; 


S.  VIII.]  NOTE  ON  PARTIES.  417 

Harvey  v.  Bignold,  S  Beav.   343  ;    Evans  v.   Stokes.  1  Keen,  vii.  Parties  to 

_.„.,,  TT  •  ^     rt  ^r  a'ti  1  Suits  AFFECTINO 

>i4  ;  Kichardsonw  Hastings.  7  iJeav.  301.     And  hence  where  PEBbo.ss  having 
a  bill  is  filed  by  a  shareholder  in  a  company,  praying  for  an  intkrks 
account  and  payment  of  his  share,  all  the   other  shareholders 
are   necessary  parties,   because  the   bill  in  effect  seeks   a  dis- 
solution of  the   company.     Ahrahamv.  Hannay. 'IZ '6\m.  5^\. 

A  suit  cannot  be  instituted  by  some  of  the  members  of  an 
insurance  company,  on  behalf  of  themselves  and  the  other 
members,  for  winding  up  the  affairs  of  the  company,  although 
the  members  are  so  numerous  that  it  would  be  utterly  im- 
possible to  make  them  all  personally  parties  to  the  suit.  For 
the  object  of  the  suit  is  to  deprive  persons  of  a  right  who  are 
not  parties  by  cancelling  their  policies,  which  cannot  be  done 
in  their  absence.     Long  v.  Yonge,  2  Sim.  369. 

5.  Suits  by  an  incorporated  company,  by  its  corporate  name. 
— Where  a  bill  is  filed,  by  an  incorporated  company  agains' 
the  projectors  of  it  tt)  oblige  them  to  account  for  the  value  of 
shares  appropriated  to  themselves  without  having  paid  the 
full  consideration,  the  individual  shareholders  are  not  neces- 
sary parties  ;  for  tlie  transaction  impeached  is  a  transaction 
between  the  projectors  and  the  corporation,  and  not  a  tran- 
saction between  the  projectors,  as  the  owners  of  shares,  and 
the  persons  who  purchased  from  them.  The  Society  for  the 
Illustration,  of  Practical  Sciences  v.  Abbott,  2  Beav.  571. 


418 
VIII.  Parties  to  Copyright  Suits.  ,„„  „ 

VIII.  Parties  TO 
Copy  BIGHT 

The  author  of  a  work  is  a  necessary  party  to  a  suit  by  the 
publisher  to  restrain  an  invasion  of  the  copyright,  where  no  Author, 
actual  assignment  has  been  made  of  the  copyright,  but  only 
an  agreement  to  assign  or  dispose  of  it,  and  where,  conse- 
quently, the  legal  title  to  the  copyright  remains  in  the  author. 
Colburn  v.  Duncombe,  9  Sim.  151. 


418  NOTE  ON  PARTIES.  [S.  IX. 

IX.  Parties   to  IX.  PARTIES  TO  SuiTS  PERTAINING  TO  THE  RELATION 

bUITS   PERTAIN- 
ING TO  THE  RB-  OF  Debtor  and  Creditor.*     (1) 

lation  of  ^    ' 

Debtor  and 

^^^^S^^^:^«|^  1.    Annuitant.     See  Legatee. 

Bank,  in  a  suit  ^'     Assignee.     See  Debtor. 

a°fha%e^^o"°  3.  Bank  of  England.— \n  consequence  of  the  statute   39  & 


stock. 


See  Sect.  XIII.      See  note  to  p.  398. 


(1)  The  meaning  of  the  statutory  provision  as  to  judgment  creditor 
bills  in  New-York,  and  which  was  merely  declaratory  of  a  principle  pre- 
viously established  in  chancery,  is  that  the  judgment  creditor  must 
make  a  bona  fide  attempt  to  collect  the  judgment  debt  on  his  execution. 
And  when  the  judgment  is  against  several,  the  remedy  by  execution 
against  all,  must  be  exhausted  before  bill  filed  ;  except,  perhaps,  where 
one  of  the  defendants  is  a  mere  surety.  But  even  in  that  case  the 
fact  of  suretyship,  and  an  averment  that  the  suit  here  was  instituted 
for  the  benefit  of  the  surety  and  with  his  assent,  should  be  stated  in 
the  bill.  As  the  judgment  creditor  may  take  out  several  executions 
at  the  same  time,  the  fact  that  defendants  reside  and  have  property  in 
different  counties,  need  not  delay  him  in  the  commencement  of  pro- 
ceedings here. 

If  the  j  udgment  debtor  has  a  known  and  fixed  residence  in  some  county 
in  the  state  and  property  there,  and  if  the  judgment  is  in  a  court  whence 
execution  may  issue  into  such  county,  it  must  be  done,  and  if  not,  the 
neglect  will  be  a  good  defence  to  the  bill.  Child  v.  Brace,  4  Paige 
R.  315,  316,  309. 

There  are  two  classes  of  cases  where  a  plaintiff  is  allowed  to  come 
into  this  court  for  relief.  In  the  one  the  issues  of  the  execution  gives 
the  plaintiff  a  lien  upon  the  property,  but  he  is  compelled  to  come  here 
for  the  purpose  of  removing  some  obstruction,  fraudulently  or  inequi- 
tably interposed  to  prevent  a  sale  upon  the  execution.  In  the  other  to 
obtain  satisfaction  of  his  debt  out  of  property  of  the  defendant  which 
cannot  be  reached  by  execution  at  law.  Back  v.  Burdett,  1  Paige  R. 
308,  (quoted  by  V.  C.  in  Child  v.  Brace  et  al,  4  Paige,  310.) 

Where  the  bill  has  a  mere  general  allegation  as  to  the  value  of  de- 
fendant's property,  and  the  result  shows  he  had  none,  the  bill  will  be 
dismissed  with  costs.     Sinets  v.  Williams,  4  Paige  R.  364. 

The  judgment  creditor  m^  file  a  bill  to  remove  a  fraudulent  or  in- 
equitable obstruction  or  embarrassment  interposed  to  the  lien  of  his 
judgment  and  satisfaction  of  his  execution.  But  the  bill  must  allege 
distinctly  and  specifically  that  there  is  land  within  the  jurisdiction  of 
the  court  of  law  where  his  judgment  was  obtained,  and  that  it  is  a  lien 
at  law  on  the  land,  or  if  the  property  is  personal,  show  execution  issued 
in  the  county  where  the  property  is  and  a  specific  lien  thereon  by  ac- 


S.  IX.]  NOTE    ON    PARTIES.  418 

40  Geo.  IV.  c.  36,   the   Bank   of  England  ought  not  to  be  a  ix.  Parties  to 

o  o  Suits     pertain- 

party  to  a  suit  for  the  purpose  of  giving  effect  to  a  charge  up-  ing  to  the  ek- 

on  stock.     PerJcins  v.  Bradley,  1  Hare,  219.  Debtor  and 


tual  or  constructive  levy  of  the  sheriff,  and  that  the  relief  sought,  if 
granted,  will  be  effectual,  that  is  to  enable  him  to  pursue  and  obtain  satis- 
faction by  means  of  the  legal  rights  and  remedies  he  is  already  entitled  to. 
Of  course  he  need  not  show  by  return  of  execution  unsatisfied,  that  he 
has  exhausted  his  remedy,  for  that  execution  may  be  the  very  instrument 
of  satisfaction  after  the  court  removes  the  impediment  to  its  opera- 
tion. And  a  judgment  •creditor  may  file  a  bill  in  respect  to  his  lien 
on  freehold  estates  without  proceeding  to  execution,  but  not  on  lease- 
hold and  other  personal  property,  for  that  exists  only  from  the  time 
execution  is  lodged  in  sheriff's  hands,  p.  567-8.  (Cites  1  Atk.  on 
Convey.  513.) 

To  entitle  a  judgment  creditor  to  file  a  bill  for  the  aid  of  creditor  to 
obtain  satisfaction  out  of  property  not  liable  to  be  levied  upon  by  rxe- 
cution,  he  must  show  such  execution  returned  unsatisfied.  No  state 
of  facts  will  now  excuse  it,  since  the  statute  requires  such  issue  and 
return.  McElwain  v.  Willis  ei  al.,  in  error  on  affirmation  of  chancery 
decree.  9  Wend.  548,564,  567,  568,  659.  Senator  Tracy,  in  his  opi- 
nion on  evidence  of  affirmance  with  which  the  court  was  unanimous, 
{idem.  565,)  traces  the  creditors  remedy,  and  says  that  equity  aids  not  a 
creditor  to  a  lien,  for  he  trusts  the  debtor  on  his  general  credit,  and 
equity  secures  equality  of  distribution,  not  restriction.  Therefore,  the 
mere  fact  of  an  assignment,  fraudulent  and  collusive  against  creditors, 
does  not  in  itself  entitle  a  siuL^le  creditor  to  seek  relief.  Perhaps  a  bill 
filed  in  behalf  of  himself  and  all  the  other  creditors  might  be  sustained, 
(18  Ves.  82  ;  2  Johns.  Ch.  R.  296,  cited.)  But  the  present  is  not  such  a 
bill.  It  is  only  after  a  creditor  has  obtained  an  execution  at  law,  he 
acquires  a  legal  preference  to  the  assistance  of  Chancery,  for  none  but 
execution  creditors  at  law  are  so  entitled.  McDermutt  v.  S&ong,  4 
Johns.  Ch.  R.  691.  It  is  where  a  creditor  has  obtained  an  advantage 
in  legal  diligence,  and  obtained  judgment  and  execution  unsatisfied  that 
he  may  ask  the  aid  of  chancery.  There  seems  two  classes  of  cases  of 
this  kind: — 1.  Where  the  debtor  has  property  on  which  judgment  or 
execution  is  a  specific  lien,  but  which  owing  to  fraudulent  transfer,  or 
some  other  embarrassment  wrongfully  created,  cannot  be  made  opera- 
tive, p.  565,  567.  2.  Where  the  property  is  removed  before  the  lien 
obtained,  or  consists  in  choses  of  action  or  interest  not  liable  to  execu- 
tion. In  the  latter  class  of  cases  there  seems  some  doubt  how  far 
English  chancery  interferes  to  assist  a  jiidifment  creditor;  tlie  exist- 
ence of  the  bankrupt  law  in  that  country  rendering  such  interference 
generally  unnecessary,  some  early  causes  there  show  the  exercise 
of  the  power,  although  Edghill  v.  Ilayuiood,  3  Atk.  often  quoted  in 


418  NOTE  ON  PARTIES.  [S.  IX. 

Suits*  p"rta7n°  ^"  ^'^*'^^**  ?"^  ^'■"*^- — ^o  a  Supplemental  bill  for  the  lepay- 
iNOT^o  THE  RE-  ment  of  a  sum  of  money  improperly  recovered  on  a  bill  of 
Debtor  and  exchange,  the  person  for  whom,  according  to  the  allegations 
V^^'V^^-^  of  the  original  bill,  the  individual  who  recovered  is  a  trustee, 
fbiu 'of 'ex'-'°^  is  a  necessary  party,  and  that,  notwithstanding  the  32d  or- 
change.  der  of  August,  1841.     Tinhus  v.  Peters,  5  Beav  253. 


support  of  it,  arose  under  peculiar  circumstances,  and  later  cases  are 
the  other  way,  p.  565.  But  in  New-York  the  principle  was  established 
in  chancery.  Spader  v.  Davis,  and  Brinkerhoff  v.  Brown,  4  Johns  Ch. 
R.,  and  it  was  confirmed  by  court  of  errors.  Hadden  v.  Spader,  20 
Johns.  R.  554. 

But  it  was  settled  by  those  cases  that  equity  aid  to  enforce  payment 
from  people  on  which  the  judgment  creditor  had  no  lien,  or  from  its 
nature  could  not  have  a  specific  lien,  was  not  afforded  until  after  exe- 
cution unsatisfied.  Whether  actual  return  of  execution  hud  been 
required  by  the  English  courts,  seems  somewhat  doubtful.  The  case 
of  Manningham  v.  Bolingbroke,  cited  in  JVIitford  Eq.  PI.  115,  and  in 
Cooper,  149.  states,  that  though  an  execution  be  necessary,  tl-e  return, 
of  it  nulla  bona  need  not  be  shown;  and  in  3  Atk.  351,  ante,  the  bill 
seems  to  have  been  filed  as  soon  as  execution  was  put  into  sheriff's 
hands.  But  here  the  cases  were  before  the  statute  showed  that  such 
return  was  necessary,  on  the  principle  that  the  right  to  come  here  for 
relief,  depended  on  the  fact  of  the  judgment  creditor  having  exhausted 
his  legal  remedies,  (4  Johns.  Ch.  R.  671 ;  2  McCord's  Ch.  R.  416;  1 
Paige  R.  308,)  and  these  cases  show  that  before  the  statute,  the  cre- 
ditor, to  enforce  satisfaction  from  property  on  which  he  had  no  specific 
lien,  must  show  in  his  bill  that  an  execution  on  his  judgment  was  re- 
turned unsatisfied.  And  the  statute  requiring  that  the  execution  "  shall 
have  been  returned  unsatisfied  in  whole  or  in  part,  to  enable  iiim  to 
file  his  bill,  is  only  declaratory  of  an  existing  rule.  Consequently  if 
the  statute  remedy  be  cumulative,  the  creditor,  if  relying  on  pre-exist- 
ing power  of  the  court,  must  still  show  execution  returned  unsatisfied. 

By  a  demurrer,  a  respondent  admits  the  allegations  of  the  bill,  but 
he  admits  nothing  more,  for  a  demurrer  confesses  matter  of  fact  only, 
not  matter  of  law,  1  Lord  Raym.  18.  He  does  not  admit  inferences  or 
deductions  that  do  not  follow  necessarily  from  facts  distinctly  alleged, 
and  whatever  is  necessary  to  entitle  the  plaintiff  to  relief,  must  be  al- 
leged positively  and  with  precision.  Mitford  Eq.  PL,  41.  See  Senator 
Tracy,  in  McElwain  v.  Willis,  9  Wend.  R.  568. 

A  party  seeking  aid  must  show  distinctly  and  unambiguously  all 
the  facts  necessary  to  entitle  him  to  that  aid.  Shepard  v.  Shepard,  6 
Conn.  R.  37,  cited  ibid.     In  ordinary  cases  where  complainant  has 


S.  IX.]  NOTE     ON    PARTIES.  418 

Where  an  estate   is  devised  to  trustees,  upon  trust  for  the  ^^-  pieties  to 
testator's  widow    for  life,   with  power   to    sell  the  estate,  if  a  «no  to  the  us- 

'  _  LATION    OF 

sale  should  be   necessary  for  the  payment  of  his  debts  ;  the     Debtor  and 

.  If  C'RKDITOE. 

case  is  one  in  which  the  court,  under  the  concluding  words  of  V^^'V^*/ 
the   30th  order  of  August,  1841,  will  order  the  widow  to  be  P*'"'  ?^, .'"",'' 

o        »  _'  _  ma    creditor's 

made  a  party  to  a  suit  by  a  creditor.     Hill  v.  Leclhrook,  6  Jur.  suit. 
1078.  V.  C.  B. 


a  plain  and  adequate  remedy  at  law,  chancery  will  not  interfere  ;  for 
the  jurisdiction  it  exercises  as  to  lei,'al  demand  is  merely  auxiliary  to 
that  of  courts  of  law.  It  is  in  this  character  it  sustains  a  bill  of  disco- 
very to  aid  plaintiff  in  prosecution  of  his  suit,  or  defendant  in  his  de- 
fence, prevent  setting  up  an  inequitable  defence  as  an  outstanding 
term  attendant  upon  tlie  inheritance;  and  upon  the  same  principle, 
after  a  judgment  which  is  a  lien  uptn  land,  the  court  will  aid  plaintiff 
by  removing  a  fraudulent  assi;j;nnient,  which  is  a  cloud  on  the  title  and 
prevents  the  plaintiff  from  entbrcing  the  lien  of  his  judgment,  or  to 
redeem  a  mortgage  which  prevents  the  sale  of  the  property,  as  where 
mortgagee  is  in  possession,  or  the  amount  due  on  the  mortgage  not 
being  ascertained  it  prevents  a  fair  sale  upon  the  jui'gment.  But  in 
cases  of  this  kind  the  complainant  must  show  distinctly  in  his  bill  that 
the  land  is  within  the  jurisdiction  of  the  court  of  law  where  his  judg- 
ment was  obtained,  and  that  it  is  a  lien  at  law  on  the  laud.  The  like  prin- 
ciple is  applied  to  personal  property,  and  as  lien  on  that  is  not  by  judg- 
ment, plttintiff  must  show  execution  issued  where  the  property  is  and 
a  specific  lien  by  levy.  As  in  both  cases  the  aid  is  sought  to  enforce 
a  lien,  it  must  appear  by  bill  that  the  lien  exists.     Idem,  568,  9. 

The  owners  of  a  short  term  of  years  in  land,  although  they  may 
have  the  right  to  tile  a  bill  to  prevent  the  commission  of  future  waste, 
might  not  be  the  proper  persons  to  claim  compensation  for  that  already 
committed.     Hawley  et  al.  v.  WoherUin,  5  Paige  R.  524,622. 

It  is  unnecessary  to  make  an  insolvent  judgment  debtor  party  in  judg- 
ment creditor's  bill  for  satisfaction  of  the  joint  debt  out  of  the  equitable 
interest,  property  and  choses  of  the  oti  er  joint  debtor's  defendants,  pro- 
yided  it  distinctly  appear  in  the  bill.  If  he  is  wholly  destitute  of  pro- 
perty the  fact  should  be  distinctly  averred  in  the  bill,  positively  or  on 
information  and  belief,  so  that  defendant  mny  take  issue  thereon  if  he 
please,  in  his  plea  or  answer,  and  if  complainant  cannot  make  such 
averment  and  sustain  it  by  defendant's  answer  or  proof,  he  should 
make  the  oiher  joint  debtor  party,  if  in  the  jurisdiction  of  the  court. 
If  it  do  not  so  appear,  or  a  sufficient  excuse  be  shown  for  not  making 
him  party,  the  other  debtor  may  demur  for  want  of  parties.  All  the 
judgment  debtors  may  be  parties,  if  eitlier  or  all  collectively  have  to  ex- 


418  NOTE    ON   PARTIES.  [S.  IX. 

suiTr^rERTAiN^      ^"  ^^^^*^^''*- — -A.  creditor  by  mortgage  and  collateral  bond 
iNo  TO  THE  RE-  caHnot  sue  both  as  mortgagee  and   as  bond  creditor.     And  a 

LATION    OF  •  es     O 

Debtor  and     bond  creditor  cannot  sue  alone  :  he  must  sue  on   behalf  of 

Creditoii. 

K^^''y^s>^  himself  and  all  other  bond  creditors.      White  v.  Hillacre,  3  Y. 
fZMllfZl:  &  C.  Eg.  Ex.  597. 

ceed  $100,  which  could  not  be  reached  by  execution  at  law  ;  and  one  of 
them  who  is  entirely  destitute  of  property  will  Hot  be  entitled  tests,  un- 
less he  was  unnecessarily  compelled  to  answer,  instead  of  taking  the 
bill  as  confessed  against  him.  If  one  of  the  judgment  debtors  had  not 
been  served  with  process  in  the  suit  at  law,  so  that  a  decree  here  could 
not  reach  his  separate  property,  it  may  still  be  proper  to  make  him  a 
party  to  the  creditor's  bill,  so  as  the  other  defendants  may  claim  contri- 
bution against  him,  if  they  are  compelled  to  pay  the  whole  debt.  Van 
Cleefv.  Sickles,  5  Paige  R.  506-8,  505. 

On  a  bill  against  directors  of  an  iiitiependent  New-Jersey  bank,  filed 
by  a  judgment  creditor  on  judgment  had  in  New-Jersey  to  reach  pro- 
perty fraudulently  converted  by  the  directors,  and  alleging  that  said 
bank  had  not  property  in  New- Jersey  or  here,  whereby  the  judgment 
recovered  against  the  bank,  and  certain  of  its  directors,  could  be  satis- 
fied, it  was  held  on  demurrer,  that  the  judgment,  as  appeared  by  the  bill 
itself,  was  unauthorized  by  the  New-Jersey  statute,  the  requirements 
of  which  had  not  been  followed  in  the  service  of  process  on  some  of 
the  individual  directors  against  whom  the  judgment  had  been  rendered, 
and  which  as  to  them  was  absolutely  void.  Cunningham  v.  Pell  el  ah, 
5  Paige  C.  R.  610-13,  607. 

Apart  from  the  defective  form  of  the  bill,  complainant  would  be  enti- 
tled to  relief  on  the  ground  that  the  directors  of  a  corporation  are  lia- 
ble to  the  parties  injured  for  a  fraudulent  breach  of  trust.  A  joint 
creditor  on  judgment  against  the  corporation,  or  even  a  creditor  at  large, 
is  entitled  to  protection  against  fraudulent  acts  depriving  him  of  the 
means  of  collecting  his. debt  in  the  usual  way  against  the  corporation 
itself.  It  is  not  necessary  to  make  all  the  fraudulent  directors  parties 
to  a  bill  for  satisfaction  for  a  fraudulent  breach  of  trust.  This  is  an 
exception  to  the  general  rule,  that  in  a  proceeding  against  trustees* all 
must  be  made  parties.  If  complainant  seeks  to  change  any  of  the 
directors  on  ground  of  personal  liability  for  the  debts  of  the  company, 
pursuant  to  the  act  of  incorporation,  all  the  other  directors  liable  to 
the  same  extent,  should  be  made  parties  so  that  a  proper  decree  for 
contribution  may  be  made.  In  that  case  the  corporation  also,  if  in 
existence  and  not  entirely  destitute  of  property,  should  also  be  a  party, 
so  that -its  funds  may  be  fairly  applied  to  the  payment  of  complainant's 
demand. 

When,  as  in  the  above  case,  the  personal  representatives  of  one  of 


S.  IX.]  NOTE  ON  PARTIES.  418 

To  a  bill  filed  for  carrying:  the  trusts  of  a  creditors'   deed  'X.  Pakties  to 

. »  ,  .  Suits    pebtain- 

into  execution,  the   scheduled  creditors  who  have  not  execu-  i'"*"  to  the  re- 
ted  the  deed  need  not  be   parties,     Prosser  v.  Edmonds,  1  Y.     Debtor  asd 
&  C.  481.     And  creditors  whose   names   are  scheduled  in   a  V^<V^^#/ 
creditors'  deed,  but  are  not  parties  thereto,  are  not  necessary  Scheduled  cred- 
parties  to  a  suit   by  a  subsequent  incumbrance,  to   have   the 
monies,  out  of  which   it  was  intended  to  pay  such  creditors, 


the  directors,  were  joined  in  the  bill  with  the  trustees  under  a  marriage 
settlement  of  such  director,  the  bill  was  not  objectionable  for  multifari- 
ousness, the  first  tliat  the  account  for  the  moneys,  &c.  of  the  bank  fraud- 
ulently abstracted  by  their  testator,  and  the  last  that  they  may  be  com- 
pelled to  restore  the  funds  of  the  bank  that  came  into  their  hands  as 
trustees  under  such  marriage  settlement.  But  the  corporation  must 
also  be  a  party,  whether  the  suit  be  by  creditors  or  stockholders,  the 
principle  is  the  same.  If  creditor  could  compel  account  for  abstracted 
funds,  the  corporation  not  a  party,  might  after  compel  account.  Though 
the  corporation  is  in  another  state,  it  may  be  proceeded  against  as  an 
absent  defendan  t. 

If  there  are  other  creditors  than  complainant,  they  also  should  be 
parties  or  the  bill  should  be  filed  by  cogiplainaflt  in  behalf  of  himself, 
and  all  others  standing  in  the  same  situation,  to  enable  them  to  come 
in  under  the  decree,  and  to  relieve  defendants  from  the  necessity  of 
accounting  again  to  other  creditors. 

Where  the  judgment  was  joint  on  a  joint  debt  and  some  of  the  de- 
fendants were  served  with  process,  still  the  bill  must  be  filed  against 
all,  unless  it  aver  that  those  not  served,  were  mere  sureties,  or  not 
legally  or  equitably  liable  to  contribute  towards  the  debt,  or  insolvent, 
or  out  of  the  jurisdiction.  Commercial  Bank  of  Lake  Erie  v.  Meach, 
7  Paige  R.  448 ;  see  further  creditors'  bill  against  joint  debtor,  Austin 
V.  Figueira,  id.  66;   Commercial  Bank  of  Lake  Erie  v.  Meach,  id.  448. 

Judgment  creditor's  bill,  whether  it  lies  against  lunatic,  was  a  ques- 
tion suggested  in  Copous  v.  Kauffman  ei  at.,  8  Paige  R.  588,  583,  and 
the  chancellor  was  not  prepared,  he  said,  to  say  that  a  bill  might  not 
be  "framed  so  asto_reach  property  of  a  lunatic,  which  is  actually  under 
control  of  his  wife,  so  that  complainant  otherwise  would  be  entirely 
without  remedy,  unless  he  could  obtain  decree  against  him  for  the  de- 
livery of  the  property. 

Plea  in  bar  to  judgmont  creditor's  bill,  is  good  that  defendant  had 
prgperty  which  might  have  been  levied  on,  but  was  not  by  the  othcer 
who  had  the  execution  by  consequence  of  collusion  between  them  and 
complainant  in  procuring  execution  to  be  returned  unsatisfied.  ,Thorn 
V.  Badger  el  al,  8  Paige,  130. 


419  NOTE    ON    PARTIES.  [S.  IX. 

Suits ^"rtain"  raised  ;  at  least  where  they  are  very  numerous,  and  the  trus- 

'""JtioTV'  tees  of  the  deed  are  parties  to  the  suit.  Powell  v.  Wright,  ^ 
Beav.  444.  But  in  a  case  where  a  bill  is  filed  by  a  creditor 
against  a  debtor  and  the  trustees  for  certain  of  his  creditors 
named  in  a  schedule,  and  it  prays  payment  of  the  plaintiff's 
debt  out  of  the  estate  vested  in  the  trustees,- or  out  of  the  pro- 
ceeds after  payment  of  the  debts  of  the  scheduled  creditors ; 
and  that  an  account  may  be  taken  of  the  trust  estates  and  of 
the  receipts  and  payments  of  the  trustees  ;  all  the  scheduled 
creditors  are  necessary  parties.  Cocker  v.  Lord  Egmont,  6 
Sim.  311. 

other  creditors.  ^^^  official  assignee  may  recover  from  the  representatives 
of  a  former  assignee,  monies  in  his  hands  consisting  of  divi- 
dends declared  but  unclaimed,  without  making  any  creditor 
party  to  the  suit;  for  the  order  for  a  dividend  is  not  an  appro- 
priation of  any  particular  part  of  the  bankrupt's  estate  to  any 
particular  creditor,  but  an  order  to  pay  a  proportion  of  the 
debts  out  of  the  bankrupt's  estate.  Green  v.  Weston,  7  Law 
J.  (N.  S.)  67,  L.  C. 
Author  of  a       6.  Debtors  and  their  sureties  and  personal  representatives 

ment  ot  debts,  and  assignees. — To  a  suit  for  the  execution  of  a  trust  to  sell 
and  to  pay  scheduled  creditors  out  of  the  proceeds  of  sale,  and 
to  pay  over  the  surplus  to  the  author  of  the  trust,  he  is  a  ne- 
cessary party,  [Bedford  v.  Gates,  4  Y.  &  C.  Eq.  21,)  notwith- 

All  the  judgment  debtors  it  seems  must  be  parties,  but  the  objection 
should  be  by  demurrer  or  inserted  in  answer  of  the  defendants.  If 
not,  it  affords  no  sufficient  ground  for  dismissing  bill  at  the  hearing. 
The  only  effect  of  an  objection  at  the  hearing  would  hi  to  order  the 
cause  to  stand  over  with  liberty  to  complainant  to  file  a  supplementa 
bill  to  bring  the  necessary  parties  before  the  court.  Child  v.  Brace 
et  dl.,  4  Paige  R.  314,  309. 

All  the  co-judgment  debtors,  defendants  in  the  suit  below,  shouM  be 
made  parties  to  the  bill ;  but  if  the  objection  be  not  raised  by  demurrer, 
or  insisted  on  in  the  answer,  it  uffords  no  sufficient  ground  to  dismiss 
the  bill  at  the  hearing.     Child  v.  Brace  et  al,  4  Paige  314,  309. 

A  judgment  against  a  foreign  corporation,  upon  an  attachment  under 
Naw-York  Revised  Statutes,  is  a  proceeding  in  rem,  and  not  suqii  a 
judgment  as  on  which  a  creditor's  bill  lies  on  return  of  execution  un. 
satii-fied.  The  execution  goes  against  that  property  only.  Thomas 
el  al.  v.  The  Mechanics'  Bank,  9  Paige,  218,  216. 


S.  IX.]  NOTE  ON  PARTIES.  419 

standing  the  40th  order,  although  the  defendants  sav  that  the  ^^-  parties  to 

.       ,  ,  •'  Suits  pejiTain- 

trust  fund  is   insufficient  for  the  payment  of  the  creditors,  and  '■'•°  i"  t'i^  be- 


LATIOX  OF 


therefore  there  will  be  no  surplus  for  the  author  of  the  trust.  Deuiob  and 
For  if  the  trust  fund  should  be  distributed  under  the  decree  V^x'^v^^ 
of  the  court,  in  the  absence  of  the  author  of  the  trust,  he  or  his 
representatives  might  in  another  suit  obtain  a  degree  against 
the  trustees  for  an  account,  and  the  effect  of  ihe  former  decree 
might  be  to  give  him  or  them  the  personal  security  of  the 
trustees,  in  substitution  for  the  security  of  a  fund  in  court. 
Kimber  w.-Ensworth,  1  Hare,  293. 

By  the  32nd  order  of  Aug.  1841,  "  In  all  cases  in  which  the  Persons  againet 

,..,„,  ..  I  ,     -,  I  .  ,  whom  there  is  a 

plaintiii  has  a  jomt   and  several   demand  agaitist  several  per-  joint  demand 
sons,  either  as  principals  or  sureties,  it  shall  not  be  necessary 
to  bring  before  the  court,  as  parties  to  a  suit  concerning  such 
demand,  all  the  persons  liable  thereto;   but  tlie  plaintiff  may 
proceed    against  one  or  moi'e  of  the  persons  severally  liable." 

This  order  does  not  apply  to  cases  where  there  is  only  one 
principal  and  one  surety.  Where  several  persons  are  liable 
in  diflerent  characters,  some  as  principals,  and  the  rest  as 
sureties,  then  the  order  applies  in  such  a  way  as  to  render  it 
sufficient  to  make  one  individual  of  each  class  a  party.  Lloyd 
V,  Smith,  13  Sim.  457. 

To   a  suit  by  a  surety  against  the  obligee  of  a  bond,  for  the  420 

cancelling  of  a  bond,  and  for  an  account   of  monies  received  Principal  and  co- 

_       ,  surety,  in  a  suit 

in  respect  thereof,  the  principal  and  co-surety  are   necessary  ty  a  surety  for 

•  TT     7  7  t-.  1  the  cancelling  of 

parties.     Allan  v.  Hoidaen,  6  beav.  148.     And  to  a  suit  against  a  bond  and  an 

,  .  .  ,  ,  1      r»  ,•  1  1  1   account. 

trustees,  seeking  to  set  aside,  on  the  ground  ot  fraud,  a  bond  co-obiiu'or  in  a 

/..,  .  ^1  1  ,,  111-  .•   bond,  in  a  suit  to 

oi  indemnity,  and  a  release  to  them  executed  by  their  cestui  set  the  same 
que  trust,  a  co-obligor   in  the  bond,  who  was  their  solicitor,  is 
a  necessary  party.      Colby   v.  Hawkins,  6  .lur.  1G2,    V.  C.  B. 
And  to  a  bill  praying  payment  of  a  debt  by  a  surety,  tlie  prin-  Principal  debtor 
cipal    debtor,  in  resfjcct  of  a    possible  liability   to   contribute  j", " surety. ^''°** 
something  to  the  surety,  is  a  necessary  paity  although  the  bill 
states  that  he  had  been  released  by  the  plaintift",  with  the  con- 
sent of  the   surety.     Brooks  v.    Stuart,  1   Beav.   512.     And  in  Peraonai  rcprt- 

•'        _  '  ^  scntativo     of    • 

like  manner,  in  a  suit  by  an  obligee  of  a  bond,  it  is  necessary  principal  coob- 

.  »  .       .  .  ligor.  inasuilby 

that  a  personal  representative  of  one  of  the  principal  obligors  au  obligee, 
should  be  before  the  court,  even  where  the  bill  slates  that  let. 
ters  of  administration   of  his  estate   have  not  been  taken  out, 
and  that  there  are  no  assets  out  of  which  any  j'art  of  the  [)lain- 

36 


420  NOTE    ON    PARTIES.  [S.  IX. 

IX.  Parties  to  tiff's  demand  can  be  satisfied.      Musgrave   v.  Vick,  5  Law  J. 

Suits    pertain-  ° 

ING    TO    THE    RK-     ( Q.    S.)    150,    V.    C. 
LATIO.N     OF  ^  _ 

Debtosi  and  The  assignee  of  an  insolvent  debtor  is  a  necessary  party  to 
V-^'^v'^Xk^  a  bill  by  the  insolvent  for  the  delivering  up  of  a  bill  of  ex- 
Assicrneo  of  an  chango  drawn   by  him   prior  to  his  insolvency,  because  it  is 

insolvent  debtor         _      °  .'  -l  _  •' 

in  a  suit  by  the  mimd  facie  the  property  of  the   assignee.     Balls  v.  Strut,    1 

insolvent.  i-r  -of-,  i  -,  , 

Assi-mes  of  an  Hare,  146.     But  where  an  insolvent  vendor,  and  another  per- 

insolvent    ven-  ...  .  r         i 

dor,  in  a  suit  to  son,  as  his  surcty,  join  m  a  promissory  note  tor  the  repayment 

restrain    an    ac-       „  _    ,  ,  .  i     •  i 

tion  against  his  oi-  a  part  oi  the  purchase  money  in  case   a  good  title  cannot 
^  - '  be  made,  and  where  the  surety  files  a  bill  to  restrain  an  action 

on  the  note,  the  assignees  of  the  vendor  are  not  necessary 
parties,  if  the  title  is  found  good,  or  objections  to  it  have  been 
waived  or  could  be  properly  compensated.  Musgrave  v.  New- 
ton, 4  Law  J.  (N.  S.)  223,  V.  C.  and  Lord  Commissioner 
Pepys. 

7.  Drawer  of  a  hill  of  exchange. — The  drawer  of  an  accom- 
modation bill  is  a  necessary  party  to  a  suit  by  the  acceptor 
against  the  holder  to  have  the  bill  delivered  up  to  be  cancelled. 
Tenfold  V.  Nunn,  5  Sim.  405. 

But  the  drawer  of  a  bill  of  exchange,  who  has  indorsed  it 
oyer  for  value,  is  not  a  necessary  party  to  a  suit  by  the  ac- 
ceptor against  the  drawer's  indorsee,  for  relief  against  a  fraudu- 
lent indorsement  by  such  indorsee,  after  payment  of  the  bill 
by  the  acceptor.  Earle  v.  Holt,  9  Jur.  773,  V.  C.  W. 
Heir  in  a  suit  8.  Heir. — The  heir  of  a  deceased  debtor  is  a  necessary 
Will.  IV.  C.104.  party  to  a  suit  under  the  stat.  3  &   4  Will.  IV.  c.  104,  for  the 

421  payment  of  his  debts,   by  a  sale  of  real  estate  devised  by  him. 
Broivnv.  Weatherhy,\Q^'iva.\25;  overruling  JVeeks-v.  EvaTis, 

Heir  and  person-  7  Sim.  546.     And  where  a  testator  directs  his  debts    to  be 

al  representa- 
tive, in  a  credi-  paid  out  of  his  personal  estate,  and  the  deficiency  to  be  made 

up  out  of  his  real  estate,  and  the  executors  will  not  prove,  be- 
cause there  is  no  personal  estate  ;  in  such  case,  if  a  creditor's 
bill  is  filed,  administration  and  cum  testamento  annexo  must  be 
taken  out,  and  the  administrator  and  heir  at  law,  though  an 
infant,  must  be  parties.  Fordham  v.  Rolfe,  Talm.  1. 
Heir  and  devisee      By  the  Stat.  9  Geo.  IV.  c.  33,  s.  1,  the  real  estate  of  British 

of  real  estate  iu/  .^t-  •         t        -i         -x        c 

India.  subjects  in  India   is  assets  in   the   hands  or   executors  for  the 

payment  of  debts  ;  and  hence  the  devisee  and  heir  at  law  of 
a  debtor  in  India  are  not  proper  parties  to  a  creditors'  suit. 


S.  IX.]  NOTE  ON  PARTIES.  421 

Story  V.  Fry,  1  Y.  &  C.  Ch.  Ca.  603;   11  Law  J.  (N.   S.)  >x.  Pabt.e.  to 

"^  "^  '  ^  '   .Suits    pertain- 

373,    V.    C.    B.  ING   TO     THE   BK- 

T     7  »r<  •  •  •  /»         lation  of 

9.  Indorsee. —  lo  a  suit  by  the  last  indorsee  of  a  lost  bill  of     Debtor  and 

,  ,  r  ^  1  •  Crf.ditob. 

exchange,  to  recover  the  amount  irom  the  acceptor,  the  pri-   Vs^^'V'^^ 
or  indorsees  need  not  be  made  parties.     Macartney  v.  Gra-  Prior  indorsees 

^  '^  of  a  lost  bill   of 

ham,   2   Sim.    28"),  exchange,    in    a 

.  .  .  suit  by  the  last 

10.  Legatees. — Where  a  person  dies   seised  of  real    estate  indorsee. 

1-1  1       •       1  1  •  1.  1-1  •  •  11  Legatees  and  an- 

which  was  devised  to  him  charged  with  annuities  and   lega- nuitants  when 

,  .  -  .  ,  ,  .  prior   encura- 

cies,  the  annuitants  and  legatees  ought  not  to   be  parties  to  a  brancea. 
suit  for  payment  of  his  debts  out  of  such  real  estate  ;  because 
they  are  merely  persons  having  incumbrances  prior  to  his  in- 
terest.    JParher  v.  Fuller,  1  Russ.  &  My.  G56. 

11.  Partners. — Where  an  executor  is  a  partner  in  a  firm  cxecu^tor,°in"'a 
who  claim  to  be  entitled  to  retain  assets  in  their  hands  in  sat-  to^!  ^^  "  "*'  ' 
isfaction  of  a  debt  which   they  allege  to  be  due  to  them  from 

the  testator,  a  creditor  of  the  testator  may  sue  all  the  partners, 
wbere  he  charges  that  they  all  claim  to  retain  the  assets,  be- 
cause that  amounts  lo  collusion  between  the  executor  and  the 
other  jiartners,  as  it  shows  that  they  are  all  acting  in  concert. 
Gedgev.  Traill,  1  Russ.  &  My.  281. 

12.  Sureties. — When  a  bill  is  filed  by  a  person  claiming  an  Sureties  named 

.  in  a  covenant  to 

annuity,  against  a  person  who  has  covenanted  to  pay  it,  and  pay  an  annuity 
to  create  a  term  in  certain  estates  for  securing  the  same,  and 
against  a  person  who  has  obtained  a  decree  in  another  suit, 
on  behalf  of  himself  and  other  creditors  named  in  a  creditor's 
deed  whereby  the  estates  were  vested  in  trustees  for  the  credi- 
tors who  should  execute  the  deed,  and  against  such  trustees, 
praying  for  an  account,  and  a  declaration  of  the  priorities  of 
himself  and  the  other  incumbrancers,  and  a  redemption  of 
such  as  were  prior  to  his  own,  and  liberty  to  go  in  under  the 
decree  for  what  he  should  not  be  entitled  to  recover  in  prio- 
rity to  the  trust  deed;  all  the  creditors,  though  numerous  422 
(for  instance  thirty),  that  have  executed  the  deed,  are  neces- 
sary parties;  but  persons  who  have  joined  as  sureties  in  the 
covenant  to  pay  the  annuity  arc  not  necessary  parties.  New- 
ton V.  Earl  of  Egmonl,  4  Sim.  574  ;  5  Sim.  13!). 

Nor  is  a  creditor,  in  enforcing  a  subsequent  security,  oblig-  Surety  in  a  bond. 
ed  to.  make  a  person  who  executed  a  prior  bond,  as  surety,  a 
party  to  the  bill.     Adams  v.  Thomjison,  6  Law  J.  (N.  S.)  109, 
JM.  R. 


422  NOTE  ON  PARTIES.  [S.  X- 

X.    Parties    to  ^      PaRTIES     TO     SuiTS     IN     KESPECT     OF     AcTUAL     OR      CoN- 

faUlTs  IN  RE- 

SPECT   OF    Ac  STRtCTIVE    FrACD.    (1) 

TUAL  OR  ^      ' 

Constbuctive 

V.X'^Y'-is^       Where,  through  the  negligence  of  a  solicitor,   a   person   is 
Assignee  of  a     enabled  to  commit  and  does  commit  a  fraud,  and  afterwards 

bankrupt  who  ... 

committed  a       becomcs  bankrupt,  his  assignee  is  a  necessary  party  to  a  suit 

against  the  solicitor.     Greenwood  v.  Atkinson,  4  Sim.  419. 
Limited  admin-       The,  estate  of  a  deceased  executor  is  sufficiently  represent- 

istrator,  in  a  suit  .      .    .  .  t  i  l 

charging  a   de-  ed  in  a  suit  by  an   administrator  appointed  to  attend,  supply, 

ceased   execu-  ,  .  ■>  r-  i  t  i  ..i  i  •       .. 

tor's  estate  with  substantiate  and  confirm    the   proceedings,  where  the  object 
of  the  suit  is  only  to  charge  such  executor's  estate  with  a  loss 
occasioned  by  him.     ElUce  v.  Goodson,  2  Coll.  Ch.  4. 
Representative       jhe  representatives  of  a  person  who  ioined  in  a  fraud,  but 

of  an  insolvent  ^  '■  ''       _ 

who  joined  in  a  jjed  insolvent,  without  leaving  any  assets,  is  not  a  necessary 

fraud.  o- 

party.     Seddon  v.  Connell,  10  Sim.  79. 
Representatives        -p        g  jj  seekinof  to  affect  the  personal  assets  of  a  testator, 

of  a  deceased  CO-  o  r 

executor.  j^jjg   representatives  of  one  of  his   executors   who  possessed 

part  of  his  assets  and  died  before  answer,  are  necessary  par- 
ties.    Brydges  v.  Branjil,  11  Law  J.  (N.  S.)  249,   V.  C.  E. 
Representative       The  personal  representative  of  a  mortgagor  is  not  a  neces- 

of  a  mortgagor,  ^  '  •      i  i  o    o 

in  a  suit  to  set  sary  party  to  a  suit  by  an  equitable  mortgagee  ti  set  aside  a 

aside  a  volunta-  J   ir        •>  •       i   •        i  • 

ry  settlement,     prior  voluntary  settlement  or  the  property  comprised  in   his 

mortgage.     Bo-stock  v.  S/iaw,  15  Law  J.  (N.  S.)  257,  V.  C.  E. 

Executor  of  a       To  a  suit  against  the  devisee  of  a  lease,  to  set  it  aside,  the 

devisor  of    a  °  i  i       j       • 

lease,  in  a  suit  to  executois  (H  the  testator,  who  have  assented  to  the  devise,  are 
not  necessary  parties  in   respect   of  a  sum   alleged  to  be  due 
from  the  plaintiffs  in  respect  of  money  expended  by  the  devi- 
sor in  improvements.     Mulpas  v.  Acklatid,  3  Russ.  273. 
Heir,  in  a  suit  to       Where  a  fraudulent  conveyance  has  been   obtained,  a   bill 
ufent'convey'^'^'  may  be  filed  by  the  devisee  of  the  grantor  to   set  aside   the 
^°"^®-  conveyance,  without  making  his  heir  at  law  aparty."     Tipping- 

ton  V.  Bullen,  2  Drury  &  War.  184. 
Solicitor  in  a       j„  order  that  he  may  make  a  discovery  and  may  be  made 

suit  to    FGCtitV   3  •/  •' 

deed  fraudulent-  liable  for  the  costs,  a  solicitor  who  has   irauduleiitly  altered  a 
490'^'^  draft  may  be  made  a  party  to  a  suit  instituted  for  the  purpose 

ofrectifving  the   deed.     Beadles  v.  Bunii,   10   Sim.  332  ;  9 

Law  J.  (N.  S.)  57. 

(1)  A  bill  to  set  aside  conveyance  to  trustees  for  fraud  need  not  make 
cesluis  que  (rust  parties  defendant.  The  interests  of  all  may  be  bound 
by  the  decree  without  such  parties.  Campbell  et  al  v.  Watson  el  aL^ 
8  Ohio  il.  500,  493. 


S.  XL]  NOTE    ON    PARTIES.  423 

XI.  Parties  to  Suits  pertaining    to    the    Relation    op  ^'-  Parties  .to 

^CITS      PERTAIN- 

HUSBAND    AND     WiFE.   (1)  ing  to  the   rk- 

*-      '  LATION    OF 

Husband  f"^ 

The  husband  of  a  deceased  woman  is  not  a  necessary  par-         Wikc. 
ty  to  a  suit  instituted   in  respect  of  her  chose  in  action,  by  H„gi,and 
persons  who  have  taken  out  administration    to  her   with  the 
consent  and  as  the  nominees  of  the  husband.      Collins  v.  Col- 
lins, 6  Jur.  49,  V.  C.  E. 

(1)  In  Massachusetta  where  an  action  tn  foreclose  is  statutory,  on 
foreclosing  a  mortgage  given  by  husb  ind  and  wife  of  realty  in  her  own 
riglit,  she  was  properly  joined  as  pirty  defendant.  Swan  v.  Wiswall, 
15  Pick.  R.  1-26. 

VVIien  an  unmarried  womnn  should  bo  party  to  a  bill  but  ia  not,  and 
pending  it  marri^^s,  her  husband  must  be  party  and  they  should  be 
made  such  not  by  amendment  but  supplemental  bill.  But  if  she  had 
been  served  wi-h  process  and  then  marry,  the  suit  does  not  abate,  nor 
is  it  necessary  to  file  such  bill  to  bring  her  husband  before  tlie  court. 
It  is  only  necessary  in  such  case  to  mafke  a  suggestion  of  the  marriage 
and  obtain  an  onler  that  hu.-band  and  wife  be  named  as  parties  in  sub- 
sequent proceedings.  (Mitfcrd,  58.)  The  supplemental  bill  in  the 
former  case,  which  was  for  foreclosure  of  several  mortgages  on  bills 
filed  by  executors  of  an  executor  of  mortgagee  and  tettator,  must  state, 
by  way  of  amendment,  the  interests  of  all  such  parties  as  should  have 
been  made  defendants  to  the  original  bill,  and  by  way  of  supplement 
may  state  such  new  interests  as  have  occurred  by  marriage  or  other- 
wise,  and  may  thus  bring  all  the  necessary  parties  who  are  interested 
in  the  premises  before  the  court.  The  original  bill  may  also  be  an- 
nexed by  striking  out  the  names  of  all  defendants  who  had  no  interest 
in  the  premises  when  it  was  filed,  together  with  the  allegations  as  to 
their  interests.  The  suit  is  not  abated  or  this  amendment  could  not 
now  be  alloued.  The  coming  of  age  of  an  infant  defendant  or  com- 
plainant does  not  abate  the  suit,  nor  does  it  render  a  supplemental  bill 
necessary,  unless  his  interest  in  the  subject  is  changed  by  that  event, 
nor  does  the  suit  abate  technically  by  the  operation  of  the  2d  Revised 
Statutes,  448,  that  executor  of  exncufor  has  no  authority  to  bring 
suit  relative  to  estate  of  testator.  Campbell  et  al.  Executors,  v.  Dawne 
et  al.  5  Paige  36,  34.  This  case  came  up  on  a  petition  to  revive,  and 
for  leave  to  file  a  supplomontal  bill  and  to  amend  the  original  bill,  by 
striking  out  some  and  adding  other  parties  rendered  necessary  by  death 
or  marriage,  and  upon  arrival  at  age  of  infants,  &c.  The  court  decided 
tiiat  the  suit  continue  in  name  of  pctiti  >ner  as  the  person  who  suc- 
ceeded to  the  rights  of  tlie  executors  of  the  acting  ex'^cutors  in  the 
prosecution  of  the  suit.     But  as  it  is  necessary  for  petitioner  to  file  an 


423  NOTE  ON  PARTIES.  [S.  XL- 

Snirr'^p^'RTAiN°       Where  difeme  covert  is  a  necessary  party,  her  husband  must 
iNG  TO  THE  RE-  a]go   \)q  g   party,  allhough  she  has  lived  and  still  lives  apart 

lation  of  r        ./ '  o  t 

Husband  and    from   him,  and  althoufjh  he  has  had  nothing  to  do   with   the 

Wife.  _         ^  o  o 

\-^'V^^*>'  transaction  in  respect  of  which  she  is  made  a  party.     M'Ktn- 
na  V.  Everitt,  1  Beav.  134. 

Where  a  testator  makes  the  wife  of  another  man  his  execu- 
trix, supposing  her  to  be  his  (the  testator's)  own  lawful  wife, 
and  she  afterwards  marries  a  third  person  in  the  lifetime  of 
her  real  husband,  and  such  third  person  possesses  part  of  the 
assets;  her  real  husband  is  a  necessary  party  to  a  bill  against 
her  by  the  next  of  kin,  but  he  cannot  insist  on  their  making 
such  third  person  a  party,  although  they  might  follow  the  as- 
sets into.his  hands  if  they  chose.  M'Kenna  v.  Everitt,  1  Beav. 
134. 

^f?o  a  blffby       Where  a  bill  is  filed  to  give  effect  to  a  deed  whereby  a  mar- 

her  husband,         ■. 

original  bill  in  the  nature  of  a  supplemental  bill,  for  the  purpose  of 
bringing  some  new  parties  befote  the  court  as  defendants,  the  proper 
course  is  that  he  tile  the  bill  in  his  character  of  administrator  de  bonis 
non,  to  have  the  benefit  of  the  former  proceedings  in  the  suit,  and  in 
the  same  bill  to  set  out  the  necessary  facts  either  as  amendatory  or  as 
supplemental  matters  to  bring  in  all  now  having  interest  in  the  pre- 
mises. In  such  bill  he  may  make  the  whole  proceeding  rectus  in  curia 
without  amendment  of  original,  stating  the  mistakes  as  to  parties  in  the 
•  original,  change  of  interest  of  other  parties  by  lapse  of  time  or  other- 

wise, as  reasons  for  not  making  persons  parties  to  the  supplemental 
bill  who  never  had  any  interest  in  the  subject  of  the  suit,  or  whose  in- 
terest no  longer  exists.  Such  bill  will  be  in  the  nature  of  an  original 
as  to  those  who  should  have  been  parties  in  the  tirst  place  ;  and  will 
be  a  supplemental  bill  as  to  those  who  were  served  with  process  in  the 
original,  or  who  subsequently  derived  title  through  or  under  them. 
The  rights  of  the  new  parties  would  be  the  same  upon  amendment  of 
the  first  bill,  as  the  court  cannot  by  amendment  deprive  those  made 
parties  by  such  amendment  of  any  defence  they  had  under  the  statute 
of  limitations  or  otherwise,  when  they  were  actually  made  parties  tc 
the  suit.     Ibid.  37,  38. 

A  petition  for  partition  is  an  adversary  suit,  and  where  there  can  be 
no  adversary  a  partition  would  be  unavailing,  as  when  the  petition 
was  by  husband  and  wife  for  partition  of  real  estate  devised  to  her, 
one  third  in  fee  and  residue  for  her  life,  remainder  to  her  issue,  and  if 
she  die  without,  then  over  to  certain  persons  named.  There  were  no 
adversary  between  plaintiffs  and  those  having  the  contingent  remain- 
der.    Hodgkinson  et  ux.  Petitioners,  ^c,  12  Pick.  374. 


S.  XL]  NOTE    ON    PARTIES.  423 

ried  woman  assigns  her   separate  property  in  favour  of  her  s^i^s^PERT  k° 
husband.she  ousrht  not  to  be  a  co-plaintiff  with  her  husband,  '?"' to  me  ki- 

'  o  r  L  ATI  O.N   or 

but  she    ought  to  be  a  defendant,  in  order  that  she  may  ad-    Hisband  amj 

°  .  .  WlFK. 

mit  by  her  answer  that  the  deed  was  fairly  obtained,  and  was  V^^^'V"'^*^ 
executed  by  her  with   a  full   knowledge   of  her  rights  in  the 
property  assigned.     Hanrot  v.    Cadwallader,  2  Russ.  &  My. 
545. 
For  other  cases  relating  to  this  title,   see  supra,  n.  p.  30. 

-v-TT     -n  o  T  /n\  ^"-   Parties  to 

XII.  Parties  TO   Suits  for  Legacies.  (2)  Suits  fok  leoa- 

CIEP. 

To  a  bill  for  raising  legacies  charged  on  real  estate,  annui-  Annuitants,  in  a 
tants  who  have  a  priority  over  the  legacies,  are  necessary  legacies  out^'of 
parties.     Garrett  v.  Hayter,  9  Law  J.  (O.  S.)  197,  M.  R.  rcaieetato. 

Where  an  executor  hands  over  property  to  the  residuary  Personal  repre- 

,  scntatives  ot  the 

legatee,  without  setting  apart  a  sufficient  sum  to  answer  a  testator. 
particular  legacy,  for  which  a  bond  is  given  by  the  residuary 
legatee,  and  the  executor  states  to  the  particular  legatee  that 
the  amount  of  such  legacy  is  less  than  it  really  is,  the  particu- 
lar legatee  may  maintain  a  suit  for  the  difference  against 
the  residuary  legatee  and  the  representatives  of  the  executor  A2A 

personally,  without  making  the  representatives  of  the  testator 
parties  to  the  suit.  Bcaslcjj  v.  Kenyon,  3  Beav.  544.  See  also 
Hudson  v.  Twining,  Taml.  315. 

A  person  to  whom  a  legatee  of  stock  has  bequeathed  the 
same  may  file  a  bill  against  the  trustees  of  the  stock,  for  a 
transfer  thereof,  without  making  the  executors,  either  of  the 
original  testator  or  of  his  legatee,  parties  to  the  suit,  where 
the  bill  alleges  that  they  have  respectively  assented  to  the  be- 
quests of  the  stock  by  their  respective  testators.  Smith  v. 
Broohsbank,  3  Law  J.  (N.  S.)  226,  V.  C. 

XTII.  Parties   to  Suits  pertaining  to   the   Relation  of  xiii.  Partif.sto 

Suits     i'f.rtain* 

Mortgagor  and  Mortgagee.  (1)  i.no  to  the  be- 

lation  of  Mort- 

(iAROK  AND 

1.   Mortgagors  and  t/ieir  representatives  and  assignees. — The     ^i^^^n^AciKE. 
mortgagor  or  his  heir  is  a  necessary  party  to  a  bill  by  a  second  Mort^'n:;or,  in  « 

suit  by  a  socond 

— '    ~~  "  mortgagee    to 

/■••\    o  i  nno  reJrcm   and 

(1)  bee  n.   to   p.  398.  lonclose. 

(2)  It  is  a  general  rule  that  besides  the  parties  to  a  mortgage  those 
only  are  proper  parties  to  a  suit  for  the  foreclosure  thereof  who  have,  sub- 


424  NOTE    ON    PARTIES.  [S.  XIII. 

Sn"3^*PERTltN"  mortgagee   to  redeem  the  first  mortgage  and  foreclose  the 
Nation of"mort-  equity  of  redemption.     And   the   court  will  not  make  a  de- 
MoitrGA'^GlE.     ^^®^   '"    '^^^    absence,  although   he  be  out  of  the  jurisdiction, 
and  his  residence  unknown.     Farmer  v.  Curtis.  2  Sim.  466. 

sequent  to  the  date  of  the  mortgage,  acquired  rights  or  interests  under 
the  mortgagor  or  mortgagee.  Per  Harris,  J.,  Holcomb  v.  Holcomb,  2 
Barb.  Sup.  C.  R.  20.  Tiie  plaintiff  may  also  make  prior  incumbran- 
cers parties  to  the  bill,  for  the  purpose  of  having  the  amount  of  such 
incumbrances  liquidated  and  paid  out  of  the  proceeds  of  the  sale;  or 
he  may  at  his  election,  have  the  premises  sold  subject  to  such  prior  in- 
cumbrances.    Per  Harris,  J.  Ibid. 

A  mortgagee,  in  filing  a  bill  of  foreclosure,  has  no  right  to  make  a 
person  who  claims  adversely  to  the  title  of  mortgagor,  and  prior  to  the 
mortgage  a  defendant  in  the  suit,  for  the  purpose  of  contesting  the 
validity  of  such  adverse  claim  of  title.     Ibid. 

Though  in  general  executor  may  properly  be  made  party  to  a  bill 
for  enforcing  mortgage  against  heir,  yet  if  brought  against  heir  alone, 
and  he  did  not  raise  the  objection,  the  court  would  not  refuse  to  decree 
on  account  of  want  of  parties,  and  if  heir  thought  proper  to  admit  the 
claim,  executor  would  not  be  permitted  to  volunteer  for  the  purpose 
of  defending  it.  Criiger  v,  Daniel,  1  McMullen  Eq.  Cas.  S.  Caro. 
188,9,  157. 

Mortgagee  of  personalty  need  not  make  mortgagor  party  to  bill 
against  underwriters  to  recover  on  policy  insuring  the  property  mort- 
gaged on  account  of  whoever  it  concerns.  The  mortgagee  is  the  owner 
after  the  condition  is  forfeited.  In  this  there  is  a  difference  between 
a  mortgage  of  real  and  personal  property.  Rogers  et  al.  v.  The  Tra- 
ders'  Insurance  Co.  et  al,  6  Paige  R.  586,  7,  594,  583. 

On  death  of  mortgagee  the  fee  technically  descends  to  the  heir,  but 
he  is  a  bare  trustee  for  the  personal  representatives.  The  mortgage 
interest  before  foreclosure  is  a  chattel  interest.  It  is  personal  assets 
and  goes  to  executor  wiio  may  assign  it.  It  is  not  necessary  that  the 
heir  should.  The  executor  before  assignment,  or  assignee  after,  may 
foreclose,  and  as  a  general  rule  the  heir  need  not  be  a  party  to  bill  filed 
by  the  executor  for  that  purpose.  It  is  a  proceeding  by  the  personal 
representative  for  recovery  of  the  debt,  and  the  premises  are  under  his 
control,  so  far  as  to  make  the  money.  There  are  some  English  cases 
which  appear  to  hold  the  principle  that  the  heir  is  a  necessary  party  to 
a  bill  of  foreclosure  filed  by  the  executor.  One  of  them  is  the  late 
case  of  Scott  v.  Nicoll,  3  Russ.,  476,  but  the  reason  assigned  is,  that 
if  mortgagor  redeem  there  will  be  no  one  before  the  court  from  whom 
a  conveyance  of  the  legal  estate  can  be  taken  shows  that  it  is  appli- 


S.  XIII.]  NOTE  ON  PARTIES.  424 

A  mortgagor  who  has   taken   the   benefit  of  the  Insolvent  xiri.  Parties  to 

A  1-1  t  .      /.  /.  1         .  1  ^"I'TB      PERTAIN- 

Act  ought  not  to  be  made  a  party  to  a  suit  for  foreclosing  the  ing  to  the  re- 

_,-,.  t~,,   •     T  t-.  o-»r  LATIONOF  MOIIT- 

mortgage.     LoUms  v.  Shirley,  1  Russ.  <y  My.  633.  gagor  and 

Mortgagee. 


cable  only  to  cases  of  strict  foreclosure,  not  of  foreclosure  and  sale  un-  g°g°or  ^°'  "°^ 
der  our  laws  and  practice.    Kinna  v.  Smith.  2  Green's  Ch.  R.  16, 17, 15. 

A  mortgagee  who  lias  assigned  without  seal  and  in  whom  the  legal 
title  remains,  is  not  a  necessary  party  to  bill  by  assignee.  Parker  v. 
Stevens,  id.  56. 

Foreclosure  is  a  proceeding  in  rem,  not  a  person;il  action,  and  defen- 
dant cannot  set  off  a  demand,  nothing  but  payment  operates  as  a  release 
of  the  incumbrance  pro  tanto.  White's  Administrators  v.  Williams, 
2  Green's  Ch.  R.  (N.  J.)  376. 

A  statute  foreclosure  as  to  the  rights  of  a  subsequent  mortgagee  to 
redeem  is  wholly  inoperative.  The  effect  of  such  foreclosure  is  merely 
to  transfer  to  the  purchaser  the  right  of  mortgagee  to  the  extent  of 
his  claim  or  interest  in  the  premises  for  the  security  of  his  debt,  and 
so  much  of  the  equity  of  redemption  as  was  not  bound  by  the  lien 
of  a  junior  mortgage  or  judgments.  The  purchaser  is  only  entitled  to 
the  amount  due  on  the  n^ortgage,  and  the  subsequent  incumbrancer 
coming  to  redeem  is  exempt  from  the  costs  of  the  statute  foreclosure 
which  as  to  his  rights  was  wholly  inoperative.  Vroom  v.  Dit>7ias  et 
aZ.,  4  Paige  R.  531,  526. 

But  he  obtains  the  whole  legal  and  equitable  interest  of  mortgagor 
and  all  claimants  under  him,  subject  to  the  equitable  right  of  the  judg- 
ment creditors  to  redeem,  by  piying  the  whole  mortgage  debt  without 
costs  of  the  statute  foreclosure,  but  paying  the  costs  of  the  bill  to  re- 
deem, and  also  for  improvements  made  by  the  purchaser  under  an  ad- 
mitted ignorance  of  the  existence  of  such  incumbrances.  Benedict  v. 
Oilman,  4  Paige  R.  61,  62,  58. 

A  purchaser  under  a  statute  foreclosure  may  file  bill  against  a  judg- 
ment creditor  or  subsequent  mortgagee,  to  foreclose  tlieir  equity  of 
redemption  and  need  not  make  mortgagor,  or  any  other  whose  equitable 
claim  is  already  barred,  a  party.  In  such  suit  the  subsequent  incum- 
brancer is  entitled  to  redeem  upon  the  usual  terms  of  paying  amouut 
due  upon  the  mortgage  and  the  costs  of  the  suit,  unless  the  complain- 
ant has  an  equitable'  claim  as  in  this  case,  to  a  further  allowance  for 
improvements,  «Sz,c.  In  such  cases  the  court  may  order  a  release  of  the 
premises  under  the  direction  of  a  master,  or  may  decree  a  strict  fore- 
closure against  the  subsequent  iucuinbrancer  if  he  neglect  to  redeem, 
as  will  best  promote  the  ends  of  justice.     Ibid  62-3,  58. 

The  owner  of  the  equity  of  redemption  is  a  necessary  party  although 
the  mortgagor  is  still  liable  on  his  bond  for  the  deficiency,  and  if 
mortgagor  has  assigned  it,  the  grantor  must  be  made  a  party  also,  for 


424  NOTE  ON  PARTIES.  [S.  XIIL 

Suit8^p"rtLn-       ^°  ^  mortgagor  who  has  become  bankrupt  is  not  a  neces- 
iA?ioNOp"MoK?-  ^^^y  P^^^y  ^°  ^  ^"i^  ^0^'  3,  sale  of  the  mortgaged  estate,  as  the 

GAGOR    AND 
MOBTGAOEE. 


Bankrupt  mort- 
gagor in  a  suit 
for  sale. 


whole  of  his  property,  and   consequently  his  right  to  redeem, 
is  vested  in  his  assignees.     Kerrick  v.  Saffery,  7  Sim.  317. 


otherwise  the  master's  deed  would  convey  no  title  to  the  purchaser 
as  against  such  owner,  and  if  not,  and  it  so  appear  on  the  bill,  defen- 
dant may  demur,  or  the  objection  for  the  nonjoinder  of  the  grantee  may 
be  taken  in  the  answer. 

Before  the  Legislative  act  of  May,  1840,  (New- York,)  which  allows  a 
judgment  creditor  who  was  not  a  party,  or  any  one  claiming  any  right 
or  equity  of  redemption  under  a  judgment  to  apply  to  be  made  a  party, 
(the  object  of  which  statute  was  to  protect  creditors  by  judgment  or  de- 
cree subsequent  to  the  mortgagee  and  claimants  under  them,  who  must 
have  been  parties  prior  to  that  act  in  order  to  bar  their  rights  of  redemp- 
tion,) before  that  act  purchasers,penden;e  lite  from  a  defendant  in  the  suit 
after  the  filing  notice  of  lis  'pendens,  and  creditors  by  judgment  or  de- 
cree against  such  defendant  who  had  obtained  their  liens  on  the  mort- 
gaged premises  pending  the  foreclosure  were  bound  by  the  decree 
though  not  actual  parties,  and  if  they  wished  to  interpose  a  defence 
they  could  only  do  it  in  name  of  defendant,  or  if  he  colluded  with 
complainant  or  refused  to  permit  those  who  acquired  interests  under 
him  after  suit  brought,  to  be  made  a  proper  defence  in  his  name,  their 
only  remedy  was  to  make  themselves  parties  by  filing  a  bill  to  protect 
their  rigl.ts.  Peoples'  Bank  v.  Hamilton  Manufacturing  Co.,  10  Paige 
Ch.  R.  484,  481 ;  Mitford's  PI.  73. 

A  judgment  creditor  of  mortgagor  who  seeks  to  be  made  party  and 
applies  after  decree  for  leave  to  come  in  and  defend  under  the  act  of 
1840,  must  show  upon  oath  that  he  has  a  defence,  and  state  what  the 
defence  is,  and  if  it  is  on  information,  the  affidavit  of  the  informant 
must  be  annexed.     Ibid. 

On  bill  to  foreclose  a  mortgage,  the  mortgagee  cannot  make  a  prior 
claimant  of  the  legal  title  adverse  to  both  mortgagor  and  mortgagee 
party,  to  test  and  settle  by  decree  the  validity  of  his  title.  Nor  in  bill 
for  specific  performance  can  vendee  make  claimant  of  title  adverse  to 
vendor,  party  for  like  purpose.  So  far  as  mere  ^egal  rights  are  con- 
cerned upon  bill  of  foreclosure,  the  only  proper  parties  are  mortgagor 
and  mortgagee  and  those  who  have  acquired  rights  or  interests  under 
them  subsequent  to  the  mortgage.  Eagle  Fire  Co.  v.  Lent,  6  Paige, 
637-8,  635. 

On  bill  for  specific  performance,  and  on  report  of  trustee  on  title,  the 
court  held  that  where  there  is  a  contest  in  chancery  in  relation  to  real 
estate,  or  where  mortgagee  seeks  foreclosure,  and  there  are  several 


S.  XIII.]  NOTE     ON     PARTIES.  424 

Nor  is  the  assignee  of  an  insolvent  morttracror  a  necessaJV  o^''-  P^i^^'ESTo 

°  So  'yj    Suits     pebtain- 

party  to  a  foreclosure  suit.     Steele  v.  Maunder.  1  Coll.  535.      i^o  to  the  he- 

_,  .  LATIONOF  MOKT- 

lo   a  bill  to   redeem  which  allecjes  that  the  mortgasee  has      gagob  and 

1  .  1      ,  ,  .  n    ,  Mortgagee. 

been  over-paid,  the  personal  representative  of  the  mortgagor  V^^'^v^'V-/ 
is  a  necessary  party.     Baker  v.  Weston  or  Wetton,  9  Jur.  98,  Assignee  of  an 

<i    ^        •/  '  '  insolvent    mort- 

V.  C.  E.  gngor,  in  a  tore- 

.    ,  .  closure  suit. 

The  surviving  partners  of  a  firm,  one  of  whom  deposited  Personal  reprc- 

•  iij.i,«  .p  ,  sentativc   ot 

title  deeds  with  the  firm  as  a  secunty  for  money  borrowed  by  mortgagor  in  a 

1  •  J  1  1  ^,        1     .      1  -,1  ...      suit  to  redeem. 

nim  and  by  another  person,  cannot  file  their  bill  against  his  Personal  repre- 

h/>  iri  I'li-iii  1  sentative    ot      a 

eir  tor  a  sale  ot  the  estate   to   which   the  title   deeds  relate,  mortMgor,  in  a 

without  making  his   personal  representative  a   party:  for  if  ^"' 

the  heir  suggests  thtit  the  debt  has   been   satisfied  (which,  in 

the  given,  case,  it  might  be  by  a   balanee,  being  left  in  the 

hands  of  the  partners  sufficient  to  pay  the  debt),  that  must  be 

investigated  ;  and  it  cannot  be  investigated  in  the  absence  of 

the  personal  representative.     Scholejield  v.  Heajield,   7  Sim. 

667. 

2.  Mortgagees  and  their  representatives. — Where  the  trustees     other  mortga- 
gees of  tolls  in 

: a    suit    by     one 

mortgagee, 
future  and  contingent  interests  in  the  equity  of  redemption,  it  is  not 
necessary  to  make  every  person  having  or  claiming  such  interest, 
party,  in  order  to  bar  his  right  or  claim  by  decree.  It  is  sufficient  if 
the  person  who  has  the  first  vested  estate  of  inheritance,  and  all  other 
persons  having  or  claiming  prior  rights  or  interests  in  the  premise.-, 
are  brougiit  before  the  court.  The  person  having  the  first  estate  of 
inheritance,  and  who  is  in  esse,  appears  a  necessary  party  to  a  bill  of 
foreclosure  to  make  the  decree  a  bar  either  to  his  right  or  to  the  right 
of  any  contingent  remainderman,  who  is  not  made  a  party  to  the  suit 
to  make  the  foreclosure  valid  against  all  claimants,  not  only  he  who 
has  the  first  estate  of  inheritance  must  be  brought  before  the  court, 
but  even  the  intermediate  remaindermen,  for  life,  ought  to  be  brougiit 
before  tiie  court  to  give  them  an  opportunity  to  pay  off  the  mortgage 
if  they  thought  fit.     Nodine  v.  Greenfield  el  al.,  7  Paige  R.  548,  544. 

Where  mortgagee  in  possession  gives  an  absolute  lease  reserving 
rent,  he  or  his  assigns  must  be  parties  to  a  bill  for  redemption  against 
lessee,  so  that  lessee  may  be  discharged  from  his  covenants  for  pay- 
ment of  rent,  and  also  have  a  decree  for  his  proportion  of  the  redemp- 
tion money,  to  the  extent  of  the  value  of  his  term  over  and  above  the 
rent  reserved.     Dias  v.  Mtrle,  4  Paige  R.  1259. 

On  a  bill  filed  by  the  assignees  of  a  tenant  for  life  for  a  partition, 
the  creditors  of  the  tenant  for  life  are  not  necessary  parties.  Van 
Arsdale  v.  Drake,  2  Barbour's  S.  C.  Rep.  599. 


424  NOTE    ON   PARTIES.  [S.  XIII. 

Suits^^pertIin'-  "^^  turnpike  road  assign  to  a  mortgagee  such  proportion  of 
iNG  TO  THE  BE-  tlic  tolls  as  thc  sum  advanced  by  him  bfiars  to  the  whole  prin- 

1.ATI0N  OPMort-  •'  '■ 

OAOORAND      cipal  money  advanced   on  the   credit   of  the  tolls,  the  other 

MORTGAOKE.  r 

V^X'-V^^^  mortgagees  of  the  tolls  are  necessary  parties  to  a  suit  by  him 

425  against  the  trustees  to  obtain  payment  of  arrears  of  interest 
out  of  the  tolls.     McllisTi  v.  BrooJis,  3  Beav.  22. 

gagee°jn\'fore-       "  "^'^^  ^'®'^  "^^  ^  mortgagee  to  whom  the  legal  estate  in  the 

closure  suit.        mortgaged  premises  has  descended,  is  a  necessary  party  to  a 

.  bill  of  foreclosure  filed  by  the  executor  of  the    mortgagee." 

Scott  V.  Nicholl,  and  Hampson  v.  Nicholl,  3  ituss.  476. 

Representatives        Where  a  mortgage  was  made  to   several   persons  iointly, 

of  deceased  .       ,  ^    ^  ,  .  n  ^       ,- 

mortgagees.  whether  as  trustees  or  not,  the  representatives  of  such  of  them 
as  are  dead  are  necessary  parties  to  a  bill  for  foreclosure  of 
redemption  ;  because,  although  at  law  the  whole  debt  and  se- 
curity vests  in  the  survivor,  yet  in  equity  the  mortgqgees  are 
tenants  in  common.      Vickers  v.  Coieell,  1  Beav.  529. 

First  mortgagee       A  second    mortgagee    may  sustain    a   bill   of   foreclosure 

in  a  suit  by  a  se-  .  ,  i     i  i  •  i 

cond.  agamst  the  mortgagor  and  the  subsequent  mortgagees,   with- 

out making  the  first  mortgagee  a  party.     Richards  v.  Cooper, 
5  Beav.  304  ;   Rose  v.  Page,  2  Sim.  471.     . 
Prior  incum-  Where  a  receiver  appointed  in  a  suit  instituted  by  incum- 

suiTby^^a  judg-  brancers  has  been  ordered  to  keep  down  the  incumbrances 
ment creator.  ^^^  ^^  ^^^  rents,  and  to  pay  the  residue  to  the  owner  of  the 
estate,  a  subsequent  judgment  creditor  may  file  a  bill  against 
the  owner  and  receiver,  without  making  the  other  incumbran- 
cers parties,  to  have  his  debt  satisfied  out  of  the  surplus  rents, 
after  keeping  down  their  incumbrances.  Lewis  v.  Lord 
ZoucJic,  2  Sim.  388. 
Creditors  named       3^   trustees  and  cestuis  que  trust. — To  a  bill  to  redeem  mort- 

as      cestui!^       que  j. 

trust  of  proper-  orasjed  property  which  has  been  assigned  (subiect  to  the  mort- 

ty    m  mortgage   oorr^  o\j 

in  a  suit  to  re-  gage)  to  trustees  for  scheduled  creditors,  the  creditors   are  not 

deem.  &    &    /  ' 

sufficiently  represented  by  the  trustees,  where  at  least,  no  rea- 
son is  given  in  the  bill  for  not  making  the  creditors  parties. 
And  the  defect  is  not  supplied  by  bringing  a  few  of  the  credi- 
tors before  the  court  by  a  supplemental  bill,  without  making 
the  trustees  parties  thereto.  For,  if  the  court,  for  the  sake  of 
convenience,  is  to  dispense  with  the  presence  of  any  of  them 
as  parties  to  a  bill,  the  trustees  ought  to  be  parties  to  that  bill, 
in  order  that  they  at  least  may  be  able  to  inform  the  court 
whether  it  is  sufficiently  framed   with  reference  to  the  inter- 


S.  XIII.]  NOTE  ON  PARTIES.  425 

ests  of  all  the  cestuis  que  trust.     Holland  v.  Baker,  3  Hare,  70.  ^'"-  Partiesto 
Accordinof  to  tlie  case  of  Oshorn  v.  Fallows,  to  a  suit  for  the  '"^^  to  thl  ke- 

.  ^  _  LATION  OF  MoRT- 

rederaption  of  a  raortgaere  terra,  which  the  morteragee  has  de-      oagok  and 

.         J     .  „  °      °  °     °  MORrCAOHE. 

vised  in  trust  for  several  persons,  all  those  persons  are  neces-  v^^^y^x*^ 
sary  parlies  ;  although  they  are  numerous  and  the  property  ^"^''^o'^t'^"""" 
small  ;  and  although  the  mortgagee's  will  directs  that  the  re-  ^'■™    ^^^"    a 

°  o    o  mortgagee's  will 

ceipt  of  the  trustees  shall  be  a  sufficient  discharge  to  purcha-  '"  "  suit  to  rc- 

^  o  1  deem. 

seis.  1  Russ.  &  My.  741.  But  see  the  30th  order  of  August, 
1841. 

To  a  suit  for  a  foreclosure   or  a  sale,  persons  beneficially  Cfstuis  que  im.-t 
interested  under  a  settlement   of  the  equity  of  redemption  ment  of  an  equi- 
made  by  the  mortgagor,  and  standing  prior  to  him  in  the  limi-  [foj,°  j^''^  f"re- 
tations  of  such   settlement,    and  having  consequently  a  prior  •^'°^"'''-' *""• 
right  to  redeem,  are  necessary  parties.     Anderson  v.  Stathcr, 
9  Jur.  S06,  V.  C.  B. 

A  person  cannot  maintain  a  suit  for  a  redemption,  without  Trustees    of 
making  the  trustees  of  a  charge  on  the  estate  anterior  to  the  ^•>8'"ee.  in  a  suit 

°  _  _  °  for  rcdemptioD. 

interest  claimed  by  him,  and  also  (where  not  exempted  by  the 
30th  order  of  August,  1S41,)  the  persons  beneficially  entitled 
to  that  charge,  parlies  to  the  suit.  Henley  v.  Stone,  3  Beav. 
356. 

To  a  bill  of  foreclosure,  a  trustee  of  the   mortgage  monies  n  .•    ^   _,  . 

o    o  itetirra    trustee 

who  has  retired,  but  has  not  been  freed  from  the  trust  bv  the  °'  rao^e^ec 

«  monies,    in    a 

substitution  of  a  new  trustee  in  his  room,  is  a  necessary  party,  foreclosure  suit. 

although  a  memorandum  is  indorsed  on  the  deed  by  which  he 

was  appointed,  expressive  of  the  assent  of  the  cestuis  que  trust 

to  his  discharge,    and  purporting  to   assign    and   yield  up   the 

trust  monies  and    authorities  to   the   co-trustees.     Adams  v. 

Paynter,  1  Coll.  592. 

Trustees  appointed  by  the   mortgagor  of  a  reversionary  in-  Trustees  in  a  ^ 

,       .  ,,     ,  t  rr-  foreclosure  suit. 

terest  in  stock,  in  trust  to  sell  the  same,  and  pay  off  the  mort- 
gage debt,  and  to  hold  the  surplus  for  the  mortgagor,  are  not 
proper  parties  to  a  bill  of  foreclosure.-  Slade  v.  R'gg,  3  Hare, 
35. 

4.  Parties  to  mortgage  suits  generally. —  Where  the  owner  p„rchasrr  of  an 
of  two  estates  comprised  in  the  same  mortgage,    afterwards  gB';!',!''in'nsii'i't7i!^r 
mortgages  one  of  them  to  another  person,  and  sells  the  other  ^"'".■•■■osur.-  of 
to  a  third  person,  and  then  the    first  mortgagee    files  a    bill  of  """i'""'' '"""* 

'  _  o    o  same  mortgage. 

foreclosure  of  the   estate  twice  mortgaged,  the  purchaser  of 


426  NOTE    ON    PARTIES.  [S.  XIII. 

s'iTs''rMT''iN°  ^^^^  Other  estate  is  a  necessary  party.     Payne  v.  Compion  and 
iNG  TO  THE  RE-  Comvton  V.   Payne,  2  Y.  &  C.  4')7. 

NATION  OF  MORT-  *^ 

GAGOK  AND  WHerc  a  tenant  for  life  and  a  tenant  in  tail  ioin  in  a  mort- 

MORTGAGEE.  ,  •' 

V^^'V''^^  g^S^f  and  afterwards  in  a  sale  of  the  estate,  and  the   mortga- 
Representntivoa    gree  files  a  bill  of  forcclosuie  after  the  death  of  the  tenant  for 

of  a  tenant   lor    ~ 

life,  in  a  fore-  \[£q  tjjg  representatives  of  the  tenant  for  life   must  be  parties 

closure  suit.  '^  •» 

to  the  bill,  because  they  are  entitled  to  some  part  of  the  pur- 
chase money.     Chalie  v.    Gwynne,  6    Law  J.   (N.   S.)  274, 

427  M.  R. 

torsf°in° a'^fore-       The  23rd  oi'der   of  Aug.  1841,  does  not  make  it  sufficient 

«  osureauit.        ^^^  ^  mortgagee  in  a  foreclosure  suit  to  serve  a  copy  of  the 

bill   upon  judgment  creditors  whose  judgments  were  entered 

up  subsequently  to  his  mortgage.     Adams  v.  Paynter,  1  Coll. 

530. 

XIV.  Parties  TO  XW .   PARTIES    TO  PARTNERSHIP    SoiTS.*  (1) 

Partnership 

ll^'J:^^  A  suit  for  the  dissolution  of  a  partnership  cannot  be  main- 
Partners  in  a  tained  by  some  of  the  pailners  on  behalf  of  themselves  and  the 
lution?'^  ^  '^'*^°   ^^^^'     ^^^  ^^^  partners  must  be  parties  by  name.      Wilson  v. 

Chester,  1  Law  J.  (N.  S.)  126,  V.  C.     See  also    cases  supra^ 

Sec.  VIL,  p.  417. 

*  See  Sec.  7.    See  note  to  p.  398. 

(1)  Partner  against  partner  cannot  blend  private  with  partnership 
claims.  If  he  is  in  advance  for  more  than  his  partnership  liabilities,  he 
becomes  a  debtor  to  the  firm  to  which  he  must  look  first,  and  lastly  to  the 
individual  efforts  of  partner,  and  there  is  no  allegation  that  the  partner's 
effects  are  not  adequate  to  indemnity.  The  advance  for  individual 
indebtedness  of  defendant,  creates  only  the  ordinary  relation  of  debtor 
and  creditor,  to  adjust  which,  a  court  of  law  is  adequate.  A  creditor 
at  large  is  not  allowed  to  come  info  this  court  upon  a  purely  legal 
claim,  and  enjoin  his  debtor  from  disposing  of  his  efl^ects.  This  is  only 
when  he  has  reduced  his  claim  to  a  judgment.  Freeman  v.  Fennall 
el  al,  1  Smedes  &  Marshall,  (Miss.)  Ch.  R.  626-7,  624. 

In  the  case  of  Coe  v.  Whiibeck,  1 1  Paige's  Chancery  Reports,  42, 
44,  Chancellor  Walworth  remarks,  that  "  where  a  debt  is  due  to  a  co- 
partnership at  the  lime  of  the  bankruptcy  of  one  of  the  individual 
members  of  the  firm,  an  action  at  law  to  recover  the  debt  must  be 
brought  in  the.  joint  names  of  the  solvent  copartners,  and  of  the  as- 
signee of  the  bankrupt;  as  the  legal  title  to  the  debt  is  vested  in  them 
jointly  by  operation  of  law,  (2  Waif,  on  Parties,  299.)  But  the  sol- 
vent partners  have  the  right  to  bring  the  action  in  the  names  of  them- 


S.  XIV.]  NOTE    ON    PARTIES.  427 

Where  several  persons  enter  into  a  speculation,   by  which  xiv.  Parties  to 

'  ^  r  '        .'  Pabtnersuip 

a  loss  is  sustained,  a  bill  by  one  of  them  against   another  for         Suits. 
his  proportion  of  the  loss,  without  making  the  others  parties,  partnere  in  a 
is  defective  for  want  of  those   parties,  although   the  plaintiff  them''i'''a?Mt  "'^ 
allege  and  prove  that  they  have  settled   with  him,  and  that  "no'^er  for  hu 

o  \r  J  '  proportion  ol    a 

nothing  is  due  from   or  to   them,  to  or  from   the   defendant.  '*>"• 
.Hills  V.  Nash,  Phil.   594. 

To  a  bill  filed  for  the  purpose  of  obtaining  relief  against  surviving  part- 
the  assets  of  a  deceased  partner,  the  surviving  partners  must  against  the  "ex- 
be  made  parties,  though  no  decree   is   sought   against  them ;  cease" p'aroier* 
because  they  are  necessarily  interested  in  taking  the  account 
of  the  amount  of  the  joint  debt,     Thorpe  v.  Jackson,  2  Y.  & 
C.  Eq.  Ex.  553. 

A  creditor  of  a  partnership  firm  may  file  a  bill  on  behalf  of 
himself  and  all  other  creditors  for  payment  of  the  partnership 
debt  out  of  the  estate  of  a  deceased  partner  in  the  first 
instance,  although  there  be  no  proof  that  the  surviving  part- 
ner is  insolvent.  In  such  a  suit,  however,  the  surviving  part- 
ner is  properly  made  a  co-defendant,  as  being  interested  to 
contest  the  demands  of  the  creditors,  although  the  remedy 
against  the  surviving  partner,  is  altogether  at  law.  Wilkinson 
V.  Henderson,  1  M.  &  K.  -582. 

The  residuary  legatees  of  a  deceased  partner,  even  without  surviving  part- 
ner  and   cicecu- 

charging  or  proving  collusion,  may  maintain   a  suit  for  an  tor  of  a  deceased 

selves  and  the  assignees  of  the  bankrupt,  without  the  consent  of  such 
assignees,  upon  giving  them  an  indemnity  against  the  costs  (Brown 
on  Parties,  65;  Whitehead  v.  Hughes,  2  Cromp.  &  Meeson,  318.) 
And  in  this  court  I  think  the  assignee  of  the  bankrupt  co-partner  is  a 
necessary  party  to  a  suit  brought  to  recover  a  debt  due  to  the  firm  at 
the  time  of  tlie  bankruptcy;  where  such  assignee  takes  a  beneficial 
interest  in  the  partnership  effects,  as  a  trustee  for  the  separate  credi- 
tors of  the  bankrupt  co-partner  under  tiie  proceedings  in  bankruptcy. 
But  where  the  bankrupt  is  discharged  from  iiis  debts,  and  it  distinctly 
appears  that  tne  co-partnership  is  insolvent,  so  that  the  assignee  in 
bankruptcy  has  no  interest  in  the  effects  of  the  firm,  but  tlie  solvent 
partners  must  necessarily  apply  the  whole  of  the  co-partnership  pro- 
perty to  the  payment  of  the  debts  of  the  firm  and  make  up  the  defi- 
ciency of  those  debts  out  of  their  individual  properly,  and  where  that 
fact  is  distinctly  stated  in  the  bill,  I  can  see  no  good  reason  for  making 
the  assignee  of  the  bankrupt  partner,  a  party  to  a  suit  in  this  court  to 
obtain  payment  of  a  debt  due  to  the  firm." 


427  NOTE  ON  PARTIES.  [S.  "XIV. 

^plkT^ERBmT°  account  of  his  personal  estate  against  his  executors,  and 
V  ^^^'^^  J  against  a  surviving  partner  and  the  executors  of  another  de- 
partner  in  a  suit  ceased  partner,  vvrhere  the  latter  have  purchased  the  share  of 
per8onai°"estart>  ^^^  ^^'^^  mentioned  deceased  partner  from  his  executors,  but 
ceased^partner*^   ^^^^  partnership   accounts   were  inaccurately  taken.     Law  v. 

Law.  2  Coll.  Ch.  C.  41. 
Representatives        ^q  ^  sult  in  which   a  firm  to  whom  remittances  have  been 
partner,  in  a  suit  made  will  have  to  account,  the  representatives  of  a  deceased 

m  which   the  ^ 

partnership  have  partner  are  necessary  parties.     Miller  v.  Crawford,  9  Law  J. 

to  account.  '■  *'   ^  -'  ' 

(N.  S.)  193,  L.  C. 

Insolvent  co-       Oiie  partner  may  file  a  simple  bill  for  a  contribution  in  re- 
partners,    in    a  *.  11- 
bill  for  contrihu- spect  or  an    over   payment  by  him,   and  not  for   an    account 

against  some   of  his  co-partners,   without  making  insolvent 

partners  parties  to  the  suit.     Jones  v.  Morgan,  10  Jur.  238. 

XV.  Parties  to  Suits  by  or  against  Tenants  in  Common 

XV.  Parties  to  t)  t->  ■n'  * 

Suits   by  or  CF   K.EAL  OR    It'ERSONAL    INSTATE.* 

AGAINST    Ten- 

OF  Real  OR  Per-       Where  one  of  two   tenants  in  common  files  a  bill  for  the 

SONAL  Estate.  pi-i  •      ^  it.  t   • 

y^^^->^<^^^  recovery  or  his  share  against  a  person  who  threatens  and  in- 
Tenant  in  com-  tends  to  Set  up  an  outstanding  term  so  as  to  prevent  him  from 

mon  and  trustee  ,..  .  n     •  tii-i 

of  outstanding    Succeeding  in  an  action  of  ejectment  commenced  by  him,  the 

term,    in    eject-        ,  .  .  •  r    ,       i  '^^ 

mentbiiibyano-  Other  tenant  in  common  is  a  necessary  party,  it  the  bill  prays 

tenant  in   com-     .^i      .^  i  i  f     i  -i  f>  • 

mon.  that  an  account  may  be  taken  oi  the  rents  and  pronts  receiv- 

ed by  the  defendant,  and  that  the  defendant  may  de'iver  up 
the  title  deeds  ;  but  the  trustee  of  the  term  need  not  be  a 
party.     Brookes  v.  Burt,  1  Beav.  106. 

Person    entitled       A  bill  may  be  filed  for  the  moiety  of  a  le2:acy  by  one  of  two 

to   a  share   of  a  /  .     •'  o       .;      ./ 

legacy  or  fund,  pei'sons  entitled  to  the  legacy,  without  making  the  other  lega- 

in  a  suit  by  ano-  ^^  y~.7  rr  t/xtci\t-it» 

ther  person  for  tees  a  party.     Hughson  v.  Cookson,  S  Law  J.  (N.  o.)  Lx.  K. 

another  share,      „^ 
where    there  is   Oo. 

trust  Where  a  sole  surviving  executrix,  who  is  beneficially  inter- 

ested in  a  moiety  of  her  testatrix's  estate,  files  a  bill  against 
a  person  who  has  received  part  of  that  estaSfe  abroad,  the 
representatives  of  the  person  beneficially  interested  in  the 
other  moiety  must  be  befoi'e  the  court.  But  it  will  be  consid- 
ered sufficient  (at  least,  if  not  objected  to  until  the  hearing)  if 
such  sole  surviving  executrix  takes  out  administration  in  the 
prerogative  court  to  the  party  interested  in  such  other  moiety 

*  See  Sec.  7.     See  note  to  pp.  398,  399. 


S.  XV.]  NOTE    ON    PARTIES.  428 

akhouerh   that    party  left   a  will  which  has  been  proved   in  a  ^^-  ''a«tie8  to 

^        "^    ,  '  Suits   bv  ob 

forei.srn  country.     Price  v.    Dewliurst,  6    Law  J.  (N.   S.)  226,    against  Ten- 

J7  ^  '  ANT8  IN  Common 

V  .  C.  OF  Keai,  or  1'e»- 

_  _  60NAI.  ESTATK 

In  Hutchinson  v.  Townsend,  Lord  Langdale,  M.  R.,  on  the  V-^'VX^ 
authority  of  Smith  v.  Snow,  3  Mad.  10,  held  tliat  a  person  en- 
titled to  one-fourth  of  an  ascertained  and  appropriated  fund, 
vested  in  a  trustee,  may  sue  for  his  one-fourth  share  without 
making  the  parties  entitled  to  the  other  three  fourths  parties 
to  the  suit ;  although  his  lordship  said  it  would  be  very  incon- 
venient to  encourage  suits  of  this  description.  To  deal  with 
a  fund  in  parts  would  occasion  a  multiplicity  of  suits.  1 
Keen,  675, 

According  to  the  case  of  Alexander  v.    Mullins,  where  an  J'^"°'>?  entitled 

°  .  for  a  share  qf  a 

executor  neglects  to  make  an  mvestment   to  answer  a  legacy  trust  fund,  in  a 

,      ,.  f     1        1  o       .'    suit  for  abroach 

to  certam  persons,  and  dies,  one  ot  the  legatees  cannot  pro-  of  truBt,  insti- 
ceed  against  his  assets  for  his  own  share,  without  suing  on  er  person* en ti- 
behalf  of  himself  and  the  other  legatees,  or  making  the  other  8h£'"  '^°'^^' 
legatees   parties  ;  for  a  person  having  an   interest   only  in  a  429 

portion  of  a  debt,  cannot  maintain  a  bill  for  the  recovery  of 
his  share,  without  suing  in  that  way.  2  Russ.  &  My.  56S. 
And  according  to  the  case  of  French  v.  Cockerell,  one  of  two 
persons  who  are  entitled  in  moieties  to  a  trust  fand,  cannot 
file  a  bill  for  a  misfeasance  as  to  the  whole  fund,  without  mak- 
ing the  other  a  party ;  for  otherwise  the  defendants  would  be 
subject  to  a  second  suit.  8  Sim.  219.  But  according  to  the 
case  oisj^erry  v.  Knott,  a  suit  may  be  maintained  for  a  breach 
of  trust  in  respect  of  an  ascertained  fund,  by  a  party  entitled 
to  a  moiety  thereof,  without  making  the  person  entitled  to 
the  other  moiety  thereof  a  party,     5  Beav.  203. 

Where  a  testator  bequeaths  certain  sums  to  two  persons, 
upon  trust  to  appropriate  and  apply  the  same,  in  two  equal 
parts  or  shares  to  be  divided,  for  their  children  respectively, 
the  fund  is  so  divided  into  distinct  parts,  as  to  make  it  unne- 
cessary for  a  plaintiff  filing  a  bill  in  respect  of  a  breach  of 
trust  as  to  one  part  only  to  bring  the  parties  interested  in  the 
other  before  the  couit,      Oheston  v.  Banister,  4  Beav,  205. 


37 


429  NOTE  ON  PARTIES.  [S.  XVIL 

XVI.  Parties  TO  XVI.    PARTIES    TO   TlTHE    SuiTS.  (1) 

Tithe  Suits. 

Crews  of   oys-       To  a  bill  for  the  tithes  of  oysters  customarily  paid   by   the 
ter boats.  propi'ietors   or   occupiers   of  oyster-boats,  the   crews   of  the 

boats  are  not  necessary  parties,  although  they  ai-e  paid  a  cer- 
tain sum  for  a  given  number  of  oysters  taken  :  for  it  is  not  con- 
sidered that  they  have  any  interest  in  the  fish  themselves, 
but  that  they  are  paid  w^ages  proportional  to  the  number  of 
fish  they  take.  Perrott  v.  Bryant,  2  Y.  &  C.  Eq.  Ex.  61. 
To  a  bill  for  tithes  by  a  vicar  as;ainst  the  occupiers,  the  im- 

Impropnator,  in  ^  ■'  °  i        i       i  •  i      n 

a  suit  by  the  propriator  ought  not  to  be  a  party,  although  the  bill  alleges 
that  the  tithes  in  question  have  always  been  received  by  the 
impropriator.     Cook  v.  Blunt,  2  Sim.  417. 

Landowner.  Where  in  a   bill  for  tithes  it  is  charged  that  the  landowner 

has  documents  in  his  possession  which  would  support  the 
plaintifi^s  case,  the  plaintiff  may  make  him  a  party  to  it,  for 
the  purpose  of  discovering  from  him  such  documents.  But 
the  plaintiff  in  a  suit  which  does  not  seek  the  establishment 
of  a  right  to  take  tithe  need  not  make  the  landowner,  as  well 
as  the  occupier,  a  party,  unless  he  chooses  ;  and  if  he  does 
choose  to  make  the  landowner  a  party,  he  does  it  at  the  haz- 
ard either  of  not  receiving  his  costs,  although  he  should  get  a 
decree  against  the  occupier,  or  of  paying  them,  according  to 
the  circumstances  of  the   case.     Day  v.  Drake,  3  Sim.  64,  72. 

Vicar,  in  a  suit       In  a  suit  by  an  impropriate  rector  for  an  account  of  tithes, 

by  an  impropri-  ,  ,  ,.   ,  ,    ,  i         •  i  i  ^i        j    r- 

ate  rector.  and  not  to  establish  a  right  to  take  litnes,  when  the  aeience  is 

430  that  the  tithe  in  question  is  vicarial,  and  the  vicar,  who  is  a 
defendant,  dies  during  the  suit,  it  is  not  necessary  to  make  the 
new  vicar,  as  well  as  the  executor  of  the  former  vicar,  a  par- 
ty, if  the  plaintiff  will  waive  the  account  subsequent  to  his  in- 
duction.    Daws  V.  Bean,  Jac.  95. 

XVII.  Parties  to  Suits  pertaining  to  the  Relation 
OF  Trustees  and  Cestui  que  trust.  *  {'2) 

1.  Author  of  a  trust  and  Jus  representatives. — To  a  bill  for 

XVII.Pabtiesto     ,  .  /.  1  ^      •  i?   .1        1 

Suits   pertain-  the  executiou  ot  a  trust,  the  representatives  oi   the  aonor  are 

ING  TO  THE  re- 
lation OF  Trus- 
tee AND  Cestui  *  See  note  to  p.  398. 

QUE  TRUST. 

[})  The  wife  of  a  husband,  tenant  in  common,  is  not  a  necesssry 

party  to  a  suit  for  partition.    Malhews  v.  Mathews,  1  Edw.  Ch.  R.  565. 

(2)  In  the  case  of  Christie  v.  Herrick,  1  Barb.  Ch.  R.  2C0,  Chancel- 


S.  XVII.]  NOTE  ON  PARTIES.  430 

not  necessary  parties,  although  on  the   face  of  the  bill  it  an-  xviMabtiksto 

,  '      .Suits    peiitaix- 

pears  somewhat  doubtful    whether  a  valid  trust  was  created.  «no  to  thk  «e- 
Reed  V.  O'Brien,  7  Beav.  32.  Tklstie  and 

CebtVI     qvt 

_^_____ Tii--i. 

lor  Walworth  remarks,  that  "the  general  rule  unquestionably  is,  that  or^be^autho/'iff 
all  persons  materially  interested  in  the  subject  matter  of  the  suit  ought  »  trust,  in  asnit 

.     ,  ,  -111  .  ,,  ,  °        for   tlie    pxccu- 

to  be  made  parties  ;  and  tliat  the  cestui  que  trust,  as  well  as  the  trustees,  tion  thereof. 
should  be  brought  before  the  court,  so  as  to  make  the  pcrformunce  of 
the  decree  safe  to  those  who  are  compelled  to  obey  it,  and  to  prevent 
the  necessity  of  the  defendants  litigating  the  same  question  again  with 
other  parties.  But  the  case  of  assignees,  or  other  trustees  of  a  fund 
for  the  benefit  of  creditors,  who  are  suing  for  the  protecti(;n  of  the 
fund,  or  to  collect  moneys  due  to  tlie  fund  from  third  persons,  appears 
to  be  an  exception  to  the  general  rule,  that  the  cestui  que  trust  must  be 
made  a  party  to  a  suit  brought  by  a  trustee.  Lord  Redesdale  says, 
trustees  of  real  estate  for  the  payment  of  debts  or  legacies,  may  sus- 
tain a  suit  either  as  plaintiffs  or  defendants,  without  bringing  the  cre- 
ditors or  legatees  before  the  court,  which  in  many  cases  would  be 
almost  impossible ;  and  the  rights  of  the  creditors  or  legatees  will  be 
bound  by  the  decision  of  the  court  against  the  trustees,  (see  supra.) 
And  in  Franco  v.  Franco,  3  Ves.  Jr.  R.  76,  where  one  trustee  filed  a 
bill  against  another,  to  compel  him  to  replace  st  ick,  belonging  to  the 
trust  fund,  which  he  had  improperly  sold.  Lord  Rosslyn  overruled  a 
demurrer,  which  had  been  filed  by  the  defendant,  upon  the  ground  that 
the  cestui  que  trust,  to  whom  the  proceeds  of  the  trust  fund  were  ulti- 
mately to  be  paid,  were  not  made  parties.  So  in  the  case  of  Bifield 
V.  Taylor,  1  Molloy's  Ch.  R.  193 ;  Beatty's  Ch.  R.  91,  S.  C,  where  a 
bill  was  filed  by  the  trustee  to  raise  the  arrears  of  an  annuity  which 
had  been  granted  to  him  in  trust  for  himself  and  four  other  persons, 
Lord  Chancellor  Hart  overruled  the  objection  of  the  defendant  that  the 
cestui  que  trust  were  not  made  parties  to  the  suit ;  it  appearing  to  have 
been  the  intention  of  the  parties  creating  the  trust,  to  give  to  the  trus- 
tee the  power  to  collect  and  receive  the  amounts  for  himself  and  the 
other  parties  interested  therein  with  him,  without  the  necessity  of 
their  interference." 

It  is  not  necessary  in  all  cases,  tl  at  the  cestuis  que  trust,  or  parties 
beneficially  interested  should  be  parties  to  a  bill  in  equity.  Executors 
and  administrators,  (for  instance)  who  mny  be  sued  or  who  may  sue, 
in  many  cases  sufBciently  represent  creditc  rs,  legatees  or  distributees 
for  whom  they  are  trustee?.  Lucas  v.  McDlair,  12  Ilarr.  &  John«. 
(Maryland.)  R.  1. 

It  is  the  constant  aim  of  a  court  of  equity  to  do  com[iIete  justice,  by 


430  NOTE    ON    PARTIES.  [S.  XVII. 

XVII.PABTIE3T0       And  to  a  suit  for  an  account  asrainst  a  person  who  has  mana- 

tOITS      PERTAIN-  °  ^ 

iNG  TO  THE  RE-  ged  ti'ust  propcity  for   a  trustee,  the   personal  representative 
Trusiee  and    of  the  testator  who  created  the  trust  is  not  a  necessary  party. 

Cestui  que         r,        t         ■,  -r-rr-,       ^  -i-  -..-t^  rfr^ 

Trvbt.         Bradstock  v.  Whatley,  7  Jus.  409,   M.  R. 

Personal  repre- ■ — ■ — — 

seutative  of  the 

author  of  a  trust  deciding  upon  and  settling  the  rights  of  all  parties  interested  in  the  subject 
trurtee^'  against  matter  of  the  suit,  but  this  may  be  obtained  by  having  the  necessary 
his  agent.  parties  before  the  court,  at  any  time  before  the  final  decree  is  passed. 

If  all  persons  interested  are  not  made  parties,  the  court  many  times, 
upon  hearing,  will  not  for  want  of  parties,  proceed  to  a  decree.  Ibid, 
If  a  trustee  employs  an  agent  to  bid  for  him  at  his  own  sale,  and  he 
does  bid,  and  the  property  is  struck  oflT  and  conveyed  to  him,  and  then 
re-conveyed  to  the  trustee  in  pursuance  of  the  previous  agreement 
between  the  agent  and  the  trustee,  in  a  bill  in  equity  to  set  aside  both 
of  those  deeds,  it  is  unnecessary  to  make  the  agent  or  his  representa- 
tive a  party.     Davis  v.  Simpwn,  5  Harr.  &  John.  R.  147. 

All  the  devisees  are  necessary  parties  to  a  suit  against  the  executors 
respecting  real  estate  which  was  devised  to  them  in  trust  to  sell,  and 
was  inequitably  purchased  by  one  of  them.  Campbell  v.  Johnston,  1 
Sand.  Ch.  R.  148. 

Where  no  trustee  of  a  wife  is  appointed  in  an  ante-nuptial  marriage 
settlement,  a  court  of  equity  will  treat  the  husband  as  trustee.  Blanch- 
ard  V.  Blood,  2  Barb.  S.  C.  Rep.  352. 

Where  a  trustee  prosecutes  a  claim  for  the  benefit  of  the  cestui  que 
trust  the  latter  must  be  made  a  party.  Fish  v.  Howland,  <^c.,  1  Paige's 
Ch.  R.  20.  Where  the  complainant  claims  in  opposition  to  a  deed  of 
trusf,  and  seeks  to  set  it  aside  on  the  ground  of  fraud,  he  may  proceed 
against  the  fraudulent  trustee  alone,  without  making  the  cestuis  que 
trust,  parties.  It  is  otherwise  where  the  complainant  is  endeavoring 
to  enforce  a  claim  adverse  to  the  interests  of  the  cestui  que  trust,  but 
which  is  founded  upon  the  supposed  validity  of  the  trust  deed.  Rogers 
v.  Rogers,  3  Paige's  Ch.  R.  379. 

A  proceeding  against  trustees  for  a  fraudulent  breach  of  trust,  is  an 
exception  to  the  rule,  that  in  a  suit  against  trustees,  all  of  the  trustees 
must  be  made  parties.  Cunningham  v.  Pell,  5  1  aige's  Ch.  R.  607. 
When  real  estate  is  conveyed  by  a  trust  deed  to  secure  the  cestui  que 
trust,  he  may  proceed  in. equity  to  foreclose  the  trust,  and  other  credi- 
tors  who  have  levied  their  executions  on  the  trust  estate  are  entitled  to 
redeem,  and  therefore  are  proper  parties  defendants  to  the  bill  of  fore- 
closure. Marriott  v.  Geven,  8  Alabama  R.  680.  In  a  bill  for  the  spe- 
cific performance  of  a  trust  deed,  all  persons  who  claim  the  specific 
fund  in  the  same  right,  may  properly  be  made  parties.  Partee  v.  McAl- 
lister, 6  Humphreys'  Tenn.  R.  408. 


S.  XVII.]  NOTE  ON  PARTIES.  430 


When  the  maker  of  a  promissory  note   places  the   money  xvn. parties  to 

1  J  r  </^    bUITS       PERTAIN- 

thereby  secured  in  settlement  upon  another  person,  the  cestui  "-c  to  the  re- 

'  '■  _  LATIOS    OF 

que  trust  may  sustain  a  suit  against  the  trustee,  seeking  to  af-    TBrsxEE  and 
feet  him  with  a  breach  of  trust  in  improperly  allowing  the  mo-         Trvst 
ney  to  remain  outstandine:,  and  to  compel  him   to  pay  the  mo-  „ 
ney,  without  seeking  to  recover  the  money  from  the  represen-  °f  '^e  maktr  of 

•"^  °  •'  *  a  note,  m   a  suit 

tatives  of  the  maker  of  the  note,  or  makingr   them   parties,  against  a truBt.-e 

^  „  »  o  1  thereof. 

Platel  V.  Oradock,  C.  P.  Cooper.  481,  V.  C.  E. 


Where  the  legal  title  to  trust  property  is  in  the  trustees,  so  that  a 
decree  directing  a  sale  of  the  property  either  by  the  trustees  or  by  a 
receiver,  will  give  a  good  and  valid  title  to  a  purchaser,  if  the  cestuis 
que  trust  are  numerous,  or  if  some  of  them  are  unknown,  it  is  not 
necessary  to  make  them  all  parties  to  a  bill  to  compel  the  execution  of 
the  trust,  and  for  an  account  and  distribution;  but  a  part  may  sue  in 
behalf  of  themselves  and  others.  And  the  court  will  see  that  the 
rights  of  all  to  their  distributive  shares  of  the  trust  fund  are  protected 
by  the  decree  in  the  cause.     Mann  v.  Butler,  2  Barb.  Ch.  R.  3G2. 

The  general  rule  is  that  a  nominal  trader  must  join  the  beneficiaries. 
But  where  the  cestuis  que  trust  are  numerous,  and  greit  inconvenience 
or  necessary  expense  would  accrue  to  complainant  to  bring  them  in,  the 
court  will  in  its  discretion  dispense  with  the  general  rule.  Willink  v. 
Morris  Canal  and  Banking  Co  ,  3  Green  Ch.  R.  377. 

Cestuis  que  trust  having  a  vested  interest  though  no  riglit  of  present 
enjoyment,  may  file  a  bill  to  have  the  trusts  declared  and  the  defendant 
removed  from  his  trust  if  he  has  misbehaved.  Cooper  v.  Day,  in  Error, 
1  Richardson  Eq.  Rep.,  (S.  Caro.,)  38,  26. 

In  general  a  bill  is  not  evidence  against  the  plaintiff,  the  statement 
being  attributed  to  the  counsel,  not  to  the  party.  But  Chan.  Johnston 
(S.  Caro.)  said  he  was  in  the  habit  of  ruling,  that  any  paper  signed 
by  a  party,  much  more  sworn  to  by  him,  is  good  as  his  statement. 
Cooper  V.  Day,  in  Error,  1  Richardson  Eq.  Rep.  34,  26. 

Where  the  bill  seeks  the  title  in  behalf  of  persons  having  the  equity 
to  land  against  the  trustee,  all  interested  in  the  equity  should  be  par- 
ties, and  if  not,  those  not  parties  are  not  alFected  by  the  doctrine  of  lis 
pendens  so  as  to  prevent  them  from  perfecting  their  equitable  right  by 
the  acquisition  of  the  legal  title.  Lessee  of  Trimble  v.  Boothby  et  al., 
14  (Griswold's)  Ohio  Rep.  109;  Gibler  et  al.  v.  Trimble,  id.  323. 

In  bill  against  trustees  of  an  incorporated  religious  society  to  re- 
strain them  from  ejecting  a  clergyman  from  the  parsonage  and  deprive 
him  of  the  right  to  preach,  the  chancellor  was  induced  to  think  that  the 
corporation  should  be  parly.     Lowyee  v.  Cipperly,  7  Paige  R.  282,  281. 


430  NOTE    ON    PARTIES.  [S.  XVII. 

xvii.  FAiiTiESTo       2,    Trustees  and  their  representatives, — A  person  who  has  ac- 

feuiTS      PCaTAIN-  -'  I 

jNG  TO  THE  BK-  ccpted  a  trust   merely  by  executing  a  deed  appointing  him  a 
'jjRusTKE  AND    nBw  tfustee,  but  has  never  acted,  is  not  a  necessary  party  to  a 
TiiusT.         suit  against  trustees  fur  a  breach  of  trust.      Wilkinson  v.  Par- 
^^^^!^2C^..  rj/,  4  Russ.  274. 
iiotacted.  Where  two  out  of  three  trustees  of  a  lease  belonging  to  a 

A  trustee,    in  a  _  _  _         _  o      o 

suit  against  CO-  club  impronerlv  sell  it,  the  third  is  not  a  necessary  party  to  a 

trustees   who  .  S.        I         J  '  j    i  j 

have  improperly  suit  fof  an  account  of  the   purchase  money  and    for  winding 
property.  up  the  affairs  of  the  club.     Richardson  v.   Hastings,  7  Beav. 

301. 

8ettie'meat°i    *       Where  a  funi  is  lost  in  consequence  of  not  being  transfer- 
suit  by  their      j.q^  from  the  trustecs  of  one  settlement  to  the  trustees  of  a 

cestuis   qtie   trust 

against  the  trus-  subsequent  settlement,  the  cestuis  gue  trust  under  the  second 

tees  01  a  lormer  .      , 

settlement.  settlement  may  file  a  bill  in  respect  of  the  loss,  without  mak- 
ing the  trustees  of  that  settlement  parties,  because  the  cestuis 
que  trust  represent  the  trustees.  Munch  v.  Cockerell,  8  Sim. 
219. 

teTm'^and  *  jor        "^^  ^  ^^^^  ^^^  ^^^  appointment  of  new  trustees  for  presei"ving 

tionists,  in  a  suit  contingent  remainders,  the  trustees  of  a  terra  for  raisin?  por- 
ter the  appomt-     .....  ... 

ment  of  new      tions  which  is  prior  in  point  of  limitation  to  the  estates  of  the 

trustees.  .  .     , 

trustees  to  preserve  contingent  remainders,  are  necessary  par- 
^o-i  ties  ;  but  the  portionists  are  not  indispensable  parties.     Elli- 

son  V.  Cookson,  2  Coll.  52. 

Personal  repre-       Where  a  bill  is  filed  for  an   account  of  personal  estate  re- 

trusteejn  a°suit  ceived  by  trustees,  a  person  who  has  obtained  administration 

rStro°fTru°s^  of  the  estate  of  one  of  them  "for  thepurpose  only  to  attend, 

*'^®®-  supply,  substantiate,  and  confirm  the  proceedings  in  the  suit," 

is  not  sufficient  to  represent  the  deceased  trustee  :  a  person 

who  represents  his  personal  estate  generally  must  be  brought 

before  the  court.   Clough  v.  Dixon,  10  Sim.  564. 

Personal  repre-       To  a  suit  for  the  recovciy  of  property  deposited  with  trus- 

sentatives    of  a  .     ,  .  ,  .      ,  i    i  i       /• 

deceased  co-      tees  as  an  indemnity  to  them  against  a   supposed   breach  oi 

for^a^*^rL°overy  trust,  the  representative  of  a  deceased  trustee  is  a  necessary 

6tu^u'tm'"m^'in-  P^^^y*  because  if  it  is  the  case  that  a  breach  of  trust  was  com- 

demnity  to  the  n;,itted,  the  estates  of  both  the  trustees   are  liable,  and  there- 
trustees.  ' 

fore  the  representative  of  the  deceased  trustee  is  interested  in 
upholding  the   indemnity.     Meinertzhagen  v.  Davis,   7  Jur. 
1103,  V.  C.  B. 
Trustees,  in  the       gy  the  32nd  Order  of  August,  1841,  "  in  all  cases  in  which 

case  of  a   joint  •'  _  .    . 

demand  on        the  plaintiff  has  a  joint  and  several  demand  against  several 


S.  XVII.]  NOTE    ON   PARTIES.  431 

persons,  either  as  principals  or  sureties,  it  shall  not  be  neces-  xvii. Parties  to 
sary  to  bring:  before  the  court,  as  parties  to  a  suit  concerninaf  '"'''  "^^  '^"^  '^■ 

JO  '1  O  LATiqN   OF 

such  demand,   all  the  persons  liable  thereto  ;  but  the  plaintiff    t,.istek  and 

'  '  Cestui    qvR 

may  proceed   against   one  or   more  of  the  persons   severally         Tkcst. 
liable."  »,         „,     „. 

thi-m.    The   321. 

This  order  renders  it  unnecessary  in  a  suit  fur  a  breach  '>^  jll'f''  °^  *"* 
trust  to  bring  all  tlie  parlies  to  the  breach  of  trust  before  the 
court.  (The  Att.  Gen.  v.  The  Corporation  of  Leicester,  7 
Beav.  176  :)  and  indeed,  a  suit  may  be  instituted  against  one 
of  them  alone.  Kellawny  v.  Johnson,  5  Beav.  319.  On  this 
subject,  see  also  Att.  Gen.  v.  Wilson,  Cr.  &  Phil.  1  ;  and 
Seddon  v.  Connell,  10  Sim.  79. 

The  32nd*order  extends  to  the  simple  case  of  a  demand  on 
executors  jointly  implicated  in  a  breach  of  trust.  Perry  v. 
Knott,  4  Beav.  179  :  5  Beav.  293.  But  it  does  not  apply  to  an 
administration  suit.  So  that  where  executors  commit  a  breach 
of  trust,  and  one  dies  before  any  suit  is  instituted,  his  per- 
sonal representatives  are  necessary  parties  to  a  suit  institut- 
ed for  an  administration  of  the  testator's  estate,  and  for  relief 
in  respect-  of  such  breach  of  trust.  Hall  v.  Austin,  10  Jur. 
452.  See  also  Biggs  v.  Penn,  4  Hare,  439  ;  and  observations 
thereon,  4  Hare,  624. 

And  where  real   property  is  left   to  trustees   upon  trust  for  482 

one  of  them  for  life,  subject  to  charges  incident  thereto,  and 
that  party  is  suffered  by  the  others  to  receive  the  rents  and 
profits,  without  satisfying  such  charges  in  the  manner  direct- 
ed, a  suit  cannot  be  instituted  for  the  breach  of  trust  against 
such  others  of  them  alone,  notwithstanding  the  32nd  order. 
Shijiton  V,  Raivlins,  4  Hare,  619. 

2.   Tenant  for  life. — And  where  executors  transfer  a  stock  Tenant  for  ii& 
into  the  joint  names  of  one  of  them  and  of  the  tenant  for  life  '^^°  breach"oJ 
of  the  stock,  and,  on  the  death  of  that  executor,  the  tenant  for  *^*'- 
life  sells  out  the  stock,  and  applies  it  to  his  own  use  ;  in  such 
case,  although  under  the  32nd  order  a  bill  may  bo  filed  against 
any  one  of  the  executors  singly  in  respect  of  the  first  breach 
of  trust  in  transferring   the   stock  ;  yet  the  tenant  for  life,  or 
his  representative,  is  a  necessary  party,  inasmuch  as  ho  is  the 
party,  or  the  representative  of  the   party,  by  whom   the  first 
breach  of  trust  was  made  an  occasion  of  actual  loss  to  the  oth- 
er parties  beneficially  interested. — Perry  v.    Knott,  5    Beav- 
293. 


432  NOTE    ON    PARTIES.  [S.  XVII. 

•^^1=^'^''^'^^^°       4.   Cestuis  que  trust. — A   trustee  may  file  a  bill  against  his 
UIT8      PERTAIN-  -»  JO 

iNG  TO  THE  BE-  co-trustec,  to  recover  the  trust  fund,  without  makinor  the  ces- 

LATION   OF  '  '  O 

Trustee  and     tuis  que  trust  parties.     May  v.  Selhy,  1   Y.  ds  C.  Ch.   C.  235. 

Cestui    que  ■'■  ... 

Trust.  And  to  a  suit  instituted  by  the  representatives  of  a  deceased 
Cestuis  que  trust  ^I'^stoe  against  surviving  cotrustees  for  a  contribution  to- 
rn a  suit  by  a  wards  makinff  erood  a  loss  occasioned  by  a  breach  of  trust,  the 

trustee    against  '"so  J  ' 

his  co-trustee,     ccsiuis  que  trust  are  not  necessary  parties.     Hohinson  v.  Evans, 

Cestuis  que  trust,  .  •         •        i  i 

in  a  suit  by  the  7  Jur.  738,   V.  C.  W.     And    a  suit  may  be  maintained  by  a 

representatives  .  ^  ,  .  , 

of  a  trustee       trustee  agamst  one  or  several  cestuis  que  trust,   to  recover  the 

against  survi-  ..  .,  ,.,  ,  . 

vingco-trnstees.  trust  Securities,  without  making  the  other  cestuis  que  trust  par- 
ina  6uft"*to'^re-  ties.     Bridget  v.  Hames,  1  Call.  72. 

securities!  *'^"^*       Where  a  suit  is  instituted  by  creditors  to  set  aside  an  assign- 
in^T'^irto^set  n^ent  made  by  a  father  to  a  trustee  for  his  children,  they  must 
ment  ^  ^®"'°'    be  defendants,  although   they  were   not  parties  to  the  assign- 
ment.    Tenchard  v.  Finch,  4  Law  J.  (N.  S.)  177,  M.  R. 
Cestuuque  trust'       To  a  bill  by  a  trustee  of  a  sum  secured  by  a  policy  of  as- 

01  a  sum   secu-  •'  j        r  J 

red  by  a  policy,  surance,  to  compel  the  person  on  whose  life  the  policy  was 
eifected,  and  who  had  fraudulently  surrendered  it,  to  pay 
the  amount  assured,  the  cestuis  que  trust  are  necessary  parties, 
in  a  case  where,  if  they  were  dead,  the  person,  so  surrender- 
ing the  policy  would  have  been  entitled  to  the  benefit  of  the 
policy.  Fortescue  v.  Barnett,  2  Law  J.  (N.  S.)  98,  V.  C. 
whom^is'cesitt^  Where  property  is  bequeathed  in  favour  of  a  person  for 
grue  trust,    pro-  ]jfg    ^jj^j  after  his  death   to  such  persons  as  shall  then  be  the 

perty  IS  limited.  -r 

433  next  of  kin  of  the  testator,  and   a  bill  is  filed  for  the  appoint- 

ment of  new  trustees,  the  next  of  kin  of  the  testator  at  the 
time  of  filing  the  bill  are  necessary  parties.  Wardell  v.  Clax- 
ton.  1  Y.  &  C.  Ch.C.  265. 

(As  to  cestuis  que  trust  of  a  prior  term,  see  Ellison  v.  Cookson, 
supra,  p.  431.) 

Cestuis  que  trust  By  the  30th  Order  of  August,  1841,  (1)  "  in  all  suits  concern- 
represented  un-  .  ,  ,.,.  ,.  1-I-  Ti 
derthe  3uth  or-  mg  leal  estate  which  is  vested  m  trustees  by  devise,  and  such 

°'  ■  trustees  are  competent  to  sell  and  give  discharges  for  the  pro- 
ceeds of  the  sale,  and  for  the  rents  and  profits  of  the  estate, 
such  trustees  shall  represent  the  persons  beneficially  inter- 
ested in  the  estate  or  the  proceeds,  or  the  rents  and  profits,  in 

(1)  This  rule  has  been  adopted  by  the  Supreme  Court  of  the  United 
States.    See  49th  of  the  Equity  Rules  Sup.  Ct.  U.  S.,  Jan.  T.,  1842. 


S.  XVII.]  NOTE     ON     PARTIES.  43S 


the  same  manner,  and  to  the  same  extent,  as  the  executors  or  lf^,T3^pKVTiiN^ 
administrators  in    suits  concerning  personal  estate  represent  ''"°7tion"of" 
the  persons  beneficially  interested  in  such  personal  estate  ;     Trustee  *nd 
and  in  such  cases  it  shall  not  be  necessary  to  make  the  per-         Tkcbt. 
sons  beneficially  interested  in  such  real  estate,  or  rents  and 
profits,  parties  to  the  suit.     But  the  court  may  upon  conside- 
ration of  the  matter  on  the  hearing,  if  it  shall  so  think  fit, 
order  such  persons  to  be  made  parties." 

Trustees  may  represent  the  persons  beneficially  interested, 
in  the  proceeds  of  an  estate  under  this  order,  although  there 
is  no  clause  in  the  will  empowering  the  trustees  to  give  dis- 
charges. Savory  v.  Barber,  4  Hare,  125.  And  they  may  do 
this  even  where  the  suit  is  by  some  of  the  persons  beneficially 
interested,  and  where  their  conduct  is  impeached  in  several 
particulars.     Osborne  v.  Foreman,  2  Hare,  656. 

But  this  order  does  not  apply  to  a  case  in  which  the  equit- 
able interest  only  is  vested  in  trustees  by  demise,  although  they 
are  empowered  to  give  discharges  for  the  proceeds.  Turner 
v.  Hind,  12  Sim.  414. 

The  order  applies  to  those  cases  in  which  trustees  have 
a  present  absolute  power  to  sell  real  estate,  and  not  to  cases 
where  they  have  no  power  to  sell,  except  with  the  consent  of 
another  person.     Lloyd  v.  Smith,  13  Sim.  457. 

Nor  does  it  apply  where  the  bill  asks  that  the  whole  of  the 
testator's  real  and  personal  estate  may  be  administered.  Mil- 
ler V.  Huddleston,  13  Sim.  467. 

4.    Other  Parties. — Where  a  trustee  of  personal  property  Person    joining 
belonging  to  a  club  improperly  sells  it,   and  another  member  price  of  propo°- 
of  the  club  joins  in  the  receipt  for  the  money,  but  does  not  re-  eoidbya'trustoe. 
ceive  any  part  of  it,  he  (the  latter)  is  not  a  necessary  party  to 
a  suit  against  such  trustee  in  respect  of  the  sale.     Richardson 
V.  Hasting,  7  Beav.  301. 

Where  some  of  the  plaintiffs  in  a  suit  for  carrying  the  trusts  434 

of  a  will  into  execution  mortgage  their  equitable  interests  pen-  '^'^r^^g?.*"  "Jj^. 
ding  the  suit,  the  mortgagee  is  a  necessary  party.     Solomon  v.  •■""• 
Solomon,  13  Sim.  516. 


434  NOTE    ON   PARTIES.  [S.  XVIII. 

tJ'suim'^b"'^^  XVIII.    Parties    to    Suits    between    Vendor    and  Pur- 

TWEKN    Vendor  ^   ^ ,  , 

AND   PUJICHASER.  CnASER.'^(lj 

1.  General  rule. — To  a  common  bill  for  a  specific  perform- 
ance the  parties  to  the  contract  are  in  general  the  only 
proper  parties.      Wood  v.  White,  4  M.  &  C.  46  J. 

*  See  Sec.  VI. 

(1)  Although  a  person  purchases  premises  subject  to  a  mortgage, and 
assumes  (as  between  the  seller  who  originally  gave  the  mortj^age  and 
himself)  the  payment  of  tlie  mortgage  debt,  as  a  part  of  the  purchase 
money,  and  afterwards  conveys  the  premises  to  another  in  like  manner 
subject  to  the  mortgage,  he  is  not  a  proper  party  to  a  bill  of  foreclosure, 
there  is  no  sufficient  covenant  or  privity  of  contract  between  him  and 
the  holder  of  the  mortgage  to  make  him  liable  for  any  deficiency  upon 
the  sale.     Lockwood  v.  Benedict,  3  Edwards'  Ch.  K.  472. 

No  decree  can  be  had  against  a  purchaser  without  notice  of  a  lien, 
unless  his  vendor,  who  was  a  purchaser  with  notice,  be  made  a  party. 
Singleton  v.  GayJe,  8  Porter's  Ala.  R.  271. 

On  a  bill  filed  by  vendee  for  rescission  of  a  contract  for  the  purchase 
of  a  tract  of  land,  if  it  appear  that  vendee  has  aliened  and  delivered 
possession  of  the  land  to  another,  such  alienee  mnst  be  made  a  party 
before  any  decree  for  rescission  can  be  pronounced.  Yoder  v.  Swear- 
ingen,  6  J.  J.  Marsh,  Ky.  R.  619. 

A  bill  either  to  rescind  or  to  enforce  the  specific  execution  of  a  con- 
tract for  the  sale  of  land,  cannot  be  sustained  against  one  who  had 
guaranteed  the  contract,  without  making  the  principal  vendor  or  his 
representative  a  party.  Oliver  v.  Dix,  1  Dev.  &.  Battle,  N.  C.  R. 
(Eq.)  168. 

Where  it  is  sought  to  vacate  a  sale  of  real  estate,  the  purchaser,  or 
in  case  of  his  death  his  heirs,  ought  regularly  to  be  parties  to  the 
cause.     Buchanan  v.  Torrance,  11  Gill  &  John.  (Maryland)  R.  342. 

The  heirs  of  the  vendee  are  necessary  parties  after  his  death,  in  a 
bill  filed  by  his  assignee  against  the  vendor,  for  a  specific  performance. 
Lord  V.  Underdunck,  1  Sand.  Ch.  R.  46. 

The  vendor  of  land  must  be  made  a  party  to  a  bill  in  chancery  en- 
joining the  purchase  money  for  a  defect  of  title,  not  withstanding;  the 
sale  was  made  by  an  agent,  the  agent  took  the  bond  for  the  purchase 
money  payable  to  himself,  and  is  made  a  party.  SweeCs  heirst  ^c.  v. 
Briggs,  6  Littell's  Ky.  R.  18. 

A  purchaser  under  contract,  who  enters  into  actual  possession  of 
lands,  in  pursuance  of  the  terms  of  agreement,  makes  improvements, 
&-C.,  should  be  made  a  party  to  a  bill  in  equity  filed  to  avoid  the  title 
of  his  vendor,  so  that  the  court  may  make  such  order  in  the  premises 
as  will  be  just  and  equitable  in  reference  to  the  rights  of  all  concerned. 


S.  XVIII.]  NOTE  ON  PARTIES.  434 


RTCXS 

TO   Suits  be- 


2.  Purchaser  and  his  trustees  and  representatives,  !^v. — Where  ^^'"g  ''■* 
two  houses,  held  under  one  lease,  are  sold  in  separate  lots ;  tween  Vkndo« 

.  .  '     _  AND  I'f  KCHASKR. 

and  It  IS  stipulated  that  the  purchasers  shall  be  parties  to  each  "^^y^^""^^ 
other's  assignment,  the  purchaser  of  the  one  lot;  if  ready  to  one"io't*^?n'^R'^8^'t 
concur  in  the  assiornment  of  the  other  lot,  is  not  a  necessary  f"""  a  epccific 

°  _  •'    pertoriuiince    of 

party  to  a  suit  fijr  the  specific  performance  of  the  purchase  of  'lie  purchnse  of 
that  lot.     Faterson  v.  Long,  5  Beav.  186. 

But  to  a  bill  by  a  purchaser  for  a  specific  performance  of  onc^ot,ina''Buit 
a  contract  for  sale  of  one  lot,  the  purchaser  of  another  lot,  ^other''*""^  °^ 
which  at  the  time  of  the  sale  was  agreed  to  be  augmented 
with  a  part  of  the  former  lot,  is  a  necessary  party ;  because, 
it  would  be  improper  to  leave  tlie  vendor  exposed  to  anothei 
suit  by  the  purchaser  of  the  lot  agreed  to  be  augmented,  3Ia- 
son  V.  Franklin,  1  Y.  &  C.  Ch.  C.  243. 

Where  trustees  for  sale  of  leaseholds  file  a  bill  against  the  Purchiiser,  in  • 

Till  11-1-  •  i-i-  1  •  r  ^"''  ^"  oblige  ■ 

Jnalord  to  oblige  him  to  give    his  hcense  to  the  assignment  oi  landlord  to  give 
the  premises  to  a  person  to  whom  they  have  been  sold,  the  sign.^ 
purchaser  is  a  necessary  party  ;  because,  if  he  were  not  made 
a  party,  the  landlord  might  be  harassed  with  another  suit  for 
the  same  purpose  by  the  purchaser.     Maule  v.  The  Duke  of 
Beaufort,  1  lluss.  349. 

"  The  original  vendee  of  an  estate  is  not  a  necessary  party  °r,^n''rTu1t' 
to  a  bill  against  his  assignee  for  a  specific  performance  of  an  "f '"Vor 'a « **- 


If  he  is  not  made  such  party,  and  a  dicree  is  obtained  avoiding  tlic 
title  of  his  vendor  on  a  bill  filed  by  a  creditor  of  the  grantor  of  the  ven- 
dor and  such  creditor  becomes  a  purchaser  of  the  legal  estate  of  his 
debtor,  at  a  sheriff's  sale,  under  an  execution  on  the  judgment  in  his 
favor,  and  brings  ejf^ctmont  for  the  recovery  of  the  land,  he  is  not  en- 
titled to  recover.     Park  v.  Jackson,  1 1  Wendell's  R.  44'2. 

Where  the  vendor  is  dead  all  his  1  eirs  at  law  should  be  parlies  to  a 
bill  to  set  aside  the  sale  on  the  ground  of  fraud  upon  the  part  of  the 
vendee.  Livingston  v.  The  Peru  Iron  Co,  and  others,  2  Paigc'si  Ch' 
R.  390. 

If  the  vendor  makes  a  subsequent  conveyance,  while  the  frauddlent 
vendee  is  in  actual  possession,  claiming  the  land  under  his  prior  pur- 
chase, the  subsequent  conveyance  is  inoperative,  and  a  suit  to  set  aside 
the  first  sale  must  be  brought  in  the  name  of  the  vendor,  or  Lis  legal 
representatives  if  he  is  dead.     I  hid. 

The  plaintiff  who  seeks  a  legal  title  from  one  who  had  notice  of  \w 
equity,  must  make  the  person  a  party  from  whom  his  equity  is  derived 
and  who  might  be  affected  by  the  decree.  Smith  v.  Shane  4"  Meigt, 
1  McLean  R.  22,  31. 


ciSc  perform- 
ance 


434  NOTE  ON  PARTIES.  [S.  XVIIL 

^To'sufw"""   agreement  to  purchase."     Hall  v.  Lever,  3  Y.  &  C.  Eq.  Ex. 

TWBEN   Vendor   Q^    191. 

AND    I'CRCHASER. 

V-^'V^^       Where  a  bill  for  a  specific  performance  is  filed  by  a  vendor 

whom  a'^°pur-      agaiiist  a  person  who  disclosed  to  the  vendor  that  he   made 

chase  was  made,  jj^g  purchase  for  his  trustee,  the  trustee  must  be  a  party  to  the 

suit.  Wynniat  v.  Lindo,  Taml.  512. 

Cestuis  gue  trusi       To  a  bill  bv  a  trustee  of  property  against  the  vendor  there- 
claiming   under  •  n         i 
a  purchaser,  in  a  of  for  a  conveyance,  the  persons  in  trust  for  whom  it  was  litn- 

8uit   for  a  con-  .-1,1,, 

veyance  from     ited  to  such  trustee  by  the  purchaser  are  necessary  parties. 
AQK  Josting  V.  Karr,  3  Beav.  694. 

Where  a  bill  is  filed  to  set  aside  a  conveyance  made  to  the 
Heir  and  person-  defendant,  and  the  defendant  makes  a  conveyance  and  lease 

al  representa-  '  '' 

tive  of   a  pur-  pendente  lite,  his  heir  is  a  proper  party  to  a  supplemental  bill 

chaser  who  has  •*        _  '  tr      r        c        J  rr 

resold  pending  a  against  the  purchaser  and  lessee;  because  his  heir  ouffht  to 

suit  lor    setting   .    .       ,  ^  .  ° ,        . 

aside  the  pur-  join  in  the  reconveyance ;  and  his  personal  representative  is 
also  a  proper  party,  because  the  plaintiff  is  entitled  to  an  ac- 
count of  the  rents  which  the  defendant  might  have  received, 
if  the  lands  had  not  been  sold  or  leased.  Trevelyan  v.  White, 
1  Beav.  588. 

Heir  of  a  ven-       3.   Other  parties  to  suits  between  vendor  and   purchaser. — 

dor,  in  a  suit  by  ^  , 

his  administra-    The  heir  at  law  of  the  vendor  of  real  estate  is  a  necessary 

tor    for  specific  .ii  i.. 

performance.  party  to  a  suit  by  the  administrator  of  the  vendor  against  the 
purchaser  for  specific  performance  of  the  contract,  even 
though  the  legal  estate  is  outstanding  in  a  trustee.  Roberts^ 
V.  Marchant,  1  Hare,  547. 

to  rescind  a  con-       Where  a  husband,  who  is  seised  of  an  estate  in  right  of  his 

tract  for  a  sale  of       -r-  ^         .      ^  n-..  'C'^  i*  ji-*  T 

her  estate  by  her  wiie,  contracts  to  sell  it,  as  II  it  wcre  his  own;   and  his  wiie, 
'^^  ^  ■  even  if  after  his  decease  she  could  adopt  the  contract  and  en- 

force a  specific  performance  thereof,  does  not  attempt  to  do 
so,  she  is  not  a  necessary  party  to  a  bill  of  revivor  filed  by 
the  purchaser  against  the  husband's  executor  to  rescind  the 
contract  on  the  ground  of  fraud.  Humphreys  v.  Hollis,  1 
Jac.  73. 
tenwft^fonife^n  Where  a  bill  for  a  specific  performance  is  filed  by  a  per- 
a  suit  for  speci-  gQ^  ^yho  has  Contracted  to  purchase  the  absolute  legal  and 

fie  performance.  _  _  ^  ° 

equitable  interest  in  a  mortgaged  estate  from  a  person  who 
claims  to  be  entitled  to  the  equity  of  redemption,  the  mort- 
gagee, who  has  not  joined  in  the  contract,  must  not  be  made 
a  defendant ;  because  he  has  no  interest  in  the  specific  per- 
formance of  the  contract:  the  performance  of  it  cannot  affect 


S.  XVIII.]  NOTE    ON    PARTIES.  435 

his  security  or  interfere  with  his  remedies  :,  the  purchaser  is  ^^"'  Partim 

,  '  TO    SuiTd     BE- 

not  entitled  to  redeem  until  the  completion  of  the  contract,  twke.v  vexdob 
and  then  the  mortgagee  is  not  at  liberty  to  dispute  hia  title,  V.^^-v^^-^ 
or  to   withhold    the  estate  on   repayment   of  the    mortgage 
money.     Nor  in  such  case  can  a  person  who  claims  a  life   es- 
tate in  the  equity  of  redemption,  but  has  not  joined   in    the 
contract,  be  made  a  defendant,   though  the   mortgagee  is  not 
willing  to  convey  to  the  purchaser  without  having  competent 
authority  for  so  doing :  for,  as  we  have  seen,  the  general  rule 
is,  that  to  a  bill  for  specific  performance,  the  parties  to  the 
contract  are  the  only  proper  parties  ;  and  there  is  no  ground 
for  departure  from  the  general  rule  in  this  case.      Tasker  v- 
Small,  3  My.  &  C.  63.     See  also  Hall  v.  Lever,  3  Y.  &  C.  Eq. 
Ex.  191,  and  White  v.  Wood,  4  My.  &  C.  460. 
If  a  purchaser  of  a  copyhold  estate  re-sells  it  before  it  is  Mort.^asoc   of » 

]  1    ^      1  •  1    ^1  ^\       c      ^  1  .       purchnaer  not  a 

surrendered  to  him,  and  thereupon  the  nrst  vendor  agrees  to  noccasary  party 
surrender  it  to  the  second  vendee  ;  and  then  the  second  ven-  purchaae/  '"*^ 
dee  borrows  money  and    agrees  to  surrender  the  copyhold  to  "samstaTcndor. 
the  lender  by  way  of  mortgage,  who  gives  notice  of  such 
agreement  to  the  first  vendor,   and  requires  the  surrender  to 
be  made  to  him  (the  mortgagee),  the  latter  is  not  a  necessary 
party  to  a  bill  filed  by  the  second  vendee  against  the  first 
vendor,  praying  a  surrender  to  be  made  to  him,  the  second 

vendee. v.  TFoZ/b/J,  4  Russ.  372. 

In  a  suit  for  the  specific  performance  of  a  covenant  to  pay  Payp.  in,«  ««ut 

*•  *  .      .  '°''  "Pacific  pcr- 

a  sum  of  money  to  a  person  for  the  use  of  the  plaintiff,  and  to  fomiHuce    of  • 

.        ■,  ■,  1  ,  covcnout  to  pay. 

secure  an  annuity  by  a  charge  on  real  estate,  tlie  person  to  incuuibranccri. 

,  ,  .  It'll-  I  ins  suit  for  spe- 

whom  the  money  is  covenanted  to  be  paid,  and  incumbrancers  cific  pirfonn- 
on  the  real  estate  whose  incumbrances  are  alleged  to  have  nant  to  socu^re an 
been  created  in  fraud  of  the  plaintiff,  are  necessary  parties,  ""tau-'^  '*° 
Paterson  v.  Wcllesleij,  6  Law  J.  (N.  S.)  190,  V.  C. 

A  man  who  after  going  through  the  marriage  ceremony  fn^*'i"°"c'h2r™ 
with  a  woman,  joins  with  her  as  her  husband  in  assigning  her  '"''  °^  I'usi'imJ 
interest  in  a  trust  fund,  but  was  at  that  time  married   to   ano. 
ther  woman,  is  not  a  necessary  party  to  a  suit  for  the  bene- 
fit of  such   assignment.     Sturgcv.  Star,  2  M.  &  K.  19«). 

A  person  is  not  a  necessary  party  merely  because  one  ob-  Tfnant  m  a  »iiit 

'  •  •  •  1         o  I'pocitic   per- 

iect  of  the  bill  is  to  restrain  an  act  by  which  he  is  aflocted.     So  lonnancc  and  to 

1         /.  •!•  I'  ri'»triunlrc«paM 

that  where  a  bill  is  filed  by  a  vendor  for  a  specihc  pertormanco 
and   to  restrain  a  trespass  by  the  purchaser  in  the  mean  time. 


436  NOTE  ON  PARTIES.  [S.  XVIIL 

xviii.  Parties    i]^q  tenant,  not  beinsf  a  party  to  the  purchase  contract,  is  not 

TO    SniTS     BE-  O  r  J  r717         ^t 

TWEEN  Vendor  a  necessarv  party  to  the  suit.     Robertson  v.  The  Great  Western 

AND  PuaCIUSER.  ^  CI  • 

^.^^^V"^^  Railway  Company,  10  Sim.  314. 

Third  party   to       Accordinfj  to  the  case  of  Greathed  v.  The  London  and  South- 

an  agreement.  ° 

Western  Raihoay  Company,  the  court  will  not  by  way  of  in- 
junction enforce  a  distinct  subsidiary  part  of  an  agreement 
between  two  parties  in  the  absence  of  a  third  party  to  the 
agreement,  and  without  giving  relief  in  respect  of  the  whole  of 
such  agreement.     10  Jur.  343. 


INDEX 


A. 

ABATEMENT,  68—72,  83,  120. 

by  what  circumstances  occasioned,  68,  et  sea. 
how  suit  restored,  83. 
See  Death. 
Marriage. 
ACCIDENT,  134,  146,  149,  150,  153. 
ACCOUNT,  141,  142,  145. 

may  be  limited  to  the  time  of  filing  the  bill,  318. 
stated,  see  Plea. 

where  there  is  error  or  fraud  in,  302,  30fi,  note  (a). 
See  Answer. 

ACKNOWLEDGMENT, 

with  reference  to  the  statute  of  limitations,  314,  315, 
ADDRESS,  see  Bill. 

ADMINISTRATION, 

limited  to  subject  of  suit,  204,  205. 
See  Parties.     (Administrator.) 
ADMINISTRATOR,  see  Parties. 

Plea  negative. 
AFFIDAVIT,  see  De  bene  esse. 
Delivery. 

Discovery  of  Deeds  of  Writings. 
Execution. 
Interpleader. 

Perpetuation  op  Testimony. 
Relief  upon  Deeds  or  Writings. 
Review,  Bill  of. 
Supplemental  Bill  in  nature  of  Bill  op. 


438  INDEX. 

AGENT, 

principal,  in  niany  cases,  has  aright  to  discovery  from,  185. 
privity  between  his  vendee  and  principal,  ih. 
notice  to,  his  notice  to  principal,  323. 
See  Interpleader. 
AGREEMENT, 

specific  performance  of  140,  141. 

,  effect  of  part  performance,  309. 
by  parol    \  as  to  confession  of,  in  answer  to  bill  for  specific  per- 

(      formance,  310,  311. 
to  refer  to  arbitration,  see  Plea. 

not  specifically  performed,  308. 
ALIEN,  see  Discovery. 
Persons. 
Plea. 
ALIENATION,  pendentelite . 

effect  of,  where  compulsory,  78,  et  seq, 
where  voluntary,  88,  et  seq. 
ALLEGATION, 

as  to  frame  and  sufficiency  of,  45 — 49. 
See  Demurrer. 
AMENDMENT  of  pleadings  generally,  19. 
See  Answer. 
Bill, 

Demurrer. 
Infant. 
Plea. 
ANSWER,  15,  16,  123,  127,  35  7. 
principal  end  of  requiring,   51. 
general  nature  of,  357. 
form  of,  374. 

where  the  proper  mode  of  defence,  362. 
what  must  be  answered  or  not,  52,  note,  358 — 372. 
ansvi^er  of  a  sole  defendant,  358,  note, 
necessity  of  putting  in    some   answer,  though  not  required  to 

answer  any  interrogatories,  358,  note, 
must  not  be  evasive,  but  must  meet  substance  of  each  charge, 

366. 
must  be  particular  to  particular  charges,  366 — 368. 
manner  in  which   sufficiency  of  determined,  and  deficiency 
supplied,  376—378. 


INDEX.  489 

ANSWE  R — continued- 

as  to  materiality  of,  365. 

as  to  scandalous  matter,  359,  note. 

scandal  or  impertinence  in,  372,  373,  379. 

where  it  must  be  signed  by  counsel,  376. 

of  a  Quaker;  or  of  a  Moravian  ;  or  of  an  infidel,  as  a  Jew  or 

a  Mahometan,  10,  note. 

of  a  trustee,   incumbrancer,  or  heir,  365,  note  (/«). 

of  new  trustees,  374,  note. 

of  a  new  master  of  a  school,  375,  note. 

of  a  stakeholder,  374    note. 

of  an  infant,  375. 

of  an  idiot  or  lunatic,  376. 

of  a  feme  covert,  see  Married  Woman, 

of  attorney-general,  376,  note. 

as  to  accounts,  368,  369, 

,       (  demurrer,  381. 
overrules  <     i  „    orr,    qq, 
(  plea.  351,  3Sl. 

where  defendant  may  thereby  protect  himself  from  making  full 
discovery,  2o6. 

discovery  enforced  by,  if  connected  with  plaintiff's  title,  370, 
371. 

discovery  enf)rced  by,  abhough  plaintiff's  title  denied,  369 — 
371. 

discovery  not  enforced  by.  if  ground  of  plaintiff's  title  be  de- 
nied, 371. 

discovery  not  enforced  by,  if  counter  title  be  set  up, .370. 

as  to  discovery  independent  of  plaititiff's  title  being  compelled, 
371. 

where  defendant  sets  up  modus  ;  denies  plaintiff's  claim  with- 
out admitting  assets  ;  denies  custom  ;  or  denies  partnership 
and  privity  ;  and  declines  to  set  forth  account  369,  371. 

.    „         ,       (  when,  38'),  390—392. 
amendment  of,  allowed,      <       .  „„  ,    „,-^ 

(  at  hearmg,  39J,  395. 

supplemental,  336,  S87.  . 

in  support  of  plea,  see  Plf,.\,  and  see,  270,  note  vISO,  et  teq., 
I'Si,  2S6,  347,  34«". 

may  be  excepted    to,  351. 
accompanying  plea  or  domurrvir,  if  the  latter  deft'iii  c  U.-  uvei - 

ruled,  must  bo  excepted  to.  378. 
read  to  counterplead  plea,  3J1,  356. 
38 


440  INDEX. 

ANS  WE  R^-continued. 

after  plea  or  demurrer  overruled,  17,  357. 
further  to  original  bill,  19,  379. 

insisting  on  same  matter  as  first  after  exceptions  thereto 
allowed,  377,  378. 
to  amended  bill,  379,  383. 

as  to  right  of  each  defendant  to  file  separate,  358,  note  {d). 
objecting  to  bill  of  revivor,  336,  337. 
as  to  reading  answ^er  to  a  cross-bill,  240,  note. 
•   as  to  such  mode  of  defence  to  a  bill  of  review,  340. 
and  disclaimer,  380. 
See  Agreement. 
Combination. 
Dependant. 
Demurrer. 
Exceptions. 
Infant. 

Interrogatories. 
Plea. 

Statute  or  Frauds. 
Time. 
Trust. 
APPEAL,  see  Remainder. 
APPEARANCE, 
■   to  original  bill.  55. 
to  bill  of  revivor,  93. 

ARBITRATOR,  see  Agreement. 
Demurrer. 
Plea. 

ASSETS,  148,  158. 

See  Answer. 
ASSIGNMENT  without  license,  see  Demurrer  to  Discovert. 
ASSIGNOR,  see  Parties. 
ASSIGNEE, 

of  party  to  a  decree,  bill  by,  115. 
See  Demurrer. 
Parties. 
ATTAINDER,  see  Persons. 
Plea. 


INDEX.  441 

ATTORNEY,  *ee  Parties. 

Plea  to  Discovery. 
ATTORNEY-GENERAL,  23,  120,   123,  195,  196. 
See  Answer. 
Crown. 
Defendant. 
Parties. 

AVERMENTS,  see  Bill. 
AVERMENTS  IN  PLEA, 

necessary,  347. 

object  of,  348. 

must  be  sufficient  to  support  it,  348. 

should  in  general  be  positive,  347. 

may  be  negative,  347,  348. 

instances,  309,  313,  322,  340. 
See  Plea. 
AWARD,  see  Plea. 

B. 

BANKRUPT. 

bill  by,  not  stating  his  bankruptcy,  329,  note  (n). 
as  to  discovery  by,  330,  notes. 

how  to  act  where  his  assignees  refuse  to  institute  or  to  prose- 
cute a  suit,  81. 

See  Defendant. 
Demurrer. 
Plaintiff. 
Plea. 
BANKRUPTCY, 

does  not  abate  a  suit,  but  merely  renders  it  defective,  79 — 93, 
commission  how  to  be  disputed,  80,  note. 
BARGAIN  AND  SALE, 

without  enrolment,  138. 
BILL  IN  CHANCERY, 
what  proper  object  of,  8. 
what  generally  sought  by,  8,  9. 
by  whom   it   may  be   exliibited,   see   Persons,  PLAiNTirr,  22, 

et  seq. 
against  whom  it   may  be  exhibited,  see  Defendant,  Persons, 
and  32,  et  seq. 


442  INDEX. 

BILL  IN  CRAl^CERY— continued. 
must  be  signed  by  counsel,  57. 

serving  a  copy  of  bill  under  23d  order  of  Aug.  1841,  11,  note, 
whence  arises  variety  of,  18. 
the  several  kinds  and  distinctions  of,  35,  loO. 
the  frame  and  end  of  the  several  kinds  of,  38. 
original,  35,  39. 
not  original,  35,  67. 
in  nature  of  original,  37. 
original,  form  of,  49. 

usually  consists  ef  nine  parts,  49. 

1.  Address,  7,  99. 

2.  Names  and  descriptions  of  plaintiff's,  49. 

3.  Stating  part,  39,  45,  49. 

4.  Allegation  of  confederacy  and  combination,  43 — 45,  SO. 

5.  Charging  part,  50,  5Q. 

6.  Averment  as  to  defect  of  remedy  elsewhere,  50. 

7.  Interrogating  pait,  51 — 54,  56. 

8.  Prayer  for  relief,  and  discovery,  51,  54. 

9.  Prayer  for  process,  39,  40,  54,  55. 
Necessary  contents  of,  45. 

.    Mode  of  allegation,  ib. 

want  of  sufficient  particularity,  45,  note, 
mode  of  putting  a  specific  allegation,  47,  note. 

rule  of  construction,  48,  note. 

demurrable  for  vagueness  and  uncertainty,  48,  note. 

original,  praying  relief,  36,  39. 
not  praying  relief,  36,  61. 

praying  relief  and  discovery  distinct  from  each  other,  8,  note. 

praying  general  decree,  36,  39. 

of  interpleader,  see  Interpleader,  and  36,  39,  58,  164. 

praying  writ  of  certiorari,  see  Certiorari,  and  9,  36,  39,  60. 

to  perpetuate  testimony,  see  Perpetuation,  Plea,  and  36,  62, 
172. 

for  discovery,  see  Costs,  Defds,  Discovery,  and  36,  64,  172. 

of  supplement,  *ee   Decree,  Demurrer,  Supplement,  and  19, 
36,  73,   78,  90,  389. 

of  revivor,  see  Costs,  Creditors,  Decree,  Demurrer,  Re- 
vivor, and  37,  83,  91,  389. 

of  revivor  and  supplement,  «fe  Demurrer,   Hearing,  and  37, 
85,  97. 


INDEX.  444 

• 
BILL  IN  CKAl^CERY— continued. 

cross,  *ee  Cross-bill,  Hearing,  and  37,  97. 

of  review,  see  Answer,   Demurrer,  Hearing,  Plea,  Review, 

and  37,  97,  101. 

in  nature  of  bill  of  review,  see  Di  murrer,  Hearing,  Review, 

and  37,  97,112. 

to  impeach  a  decree  on  the  ground  of  fraud,  see  Decree,  Plka, 

and  37,97,  112—114. 

to  suspend  the  operation  of  a  decree,  37,  97,  114. 

to  carry  a  decree  into  execution,  see  Demurrer,  Plea,  and  37, 

97,115. 

in  nature  of  bill  of  revivor,  see  Distinction,  and  38,86,  97,  117. 

in  nature  of  bill  of  supplement,  *ee  Distinction,  Supplement, 

and  38,  80,  86,  97,  118. 

supplemental  in  nature  of  bill  of,  revivor,  82. 

supplemental  in  nature  of  bill  of  review,  see  Supplemental, 

and  108. 

amendment  of, 

generally,  67,  245,  237,  385—388. 

as  to  prayer,  3'^3,  394. 

as  to  parties,  388,  389. 

as  to  extent  to  which  liberty  may  be  carried,  383,  388,  389, 

effect  in  relation  to   original  bill,  383. 

after  plea  or  demurrer  filed,  394,  note  (a). 

upon  hearing  of  demurrer,  254,  255. 

after  allowance  of  demurrer  for  want  of  parties,  208. 

after  allowance  of  plea  to  part  thereof,  not  of  course.  383, 

note  (e). 

after  liberty  to  make,  given  at  hearing,  3-9,  390,  394. 

neglect  of,  practice,  in  case  of,  39i>,  nute  {k). 

where  counsel's  signature  required  to.  384,  note. 

See  Assignee. 

Customs. 

De  bene  esse. 

Decree. 

Deliverv. 

Examination. 

Execution. 

New  Trial. 

Persons. 

Quia  timet. 


444  INDEX. 

BONDS, 

lost,  135. 
BOUNDARIES, 

obliterated,  138. 

C. 

CANCELLATION  OF  INSTRUMENTS,  150,  151 
CERTIORARI, 

proceedings  upon  a  bill  praying  writ  of,  60. 
See  Bill. 
Defence. 
Plea. 

CESTUI  QUE  TRUSTS,  see  Parties. 
CHAMPERTY,  see  Demurrer  to  Discovert. 

CHANCERY,  see  Bill. 

Jurisdiction. 
CHANCELLOR,  7. 

CHATTELS,  SPECIFIC, 

detention  of,  139. 
CHARITY, 

suit  on  behalf  of,    7. 

indulgence  of  Court  upon,  42,  43. 
See  Information. 
Petition. 

CHOSE  IN  ACTION, 

See  Parties. 
COMBINATION, 

charge  of,  answer  to,  44. 

as  to  denial  of,  by  answer,   upon  a  demurrer,  for  multifarious- 
ness, 209. 
as  to  denial  of,  by  answer,  after  usual  order  for  time,  247,  249. 

COMMISSIONERS,  LORDS,  7. 

COMMITTEES, 

of  idiots  or  lunatics,  31. 


INDEX.  445 

COMMITTEES— continued. 

defend  suits  brought  against  them,  32,  124. 
See  Parties. 

COMMON  LAW,  *ce  Courts. 

CONTRACTS,  see  Agreements. 

CONVEYANCE,  see  Plea. 

'copyhold, 

as  to  restraining  waste  by  tenant  of,  162. 

COPYRIGHT, 

as  to  restraining  infringement  of,  161,  170. 

there  must  be  a  separate  bill  against  each  invader,  210,  note. 

CORPORATIONS, 

suits  by,  25. 

defence  of  suits  by,  124. 

aggregate,  see  Defendant. 

officers  of,  made  defendants,  .329,  note. 

COSTS, 

where  awarded  against  next  friend  of  infant,  27,  28. 
where  infant  on  attaining  age  becomes  liable  to,  28. 
whereawarded  against  next  friend  of  married  woman,  30, n.  (d). 

against  relator,  24,  31.  note  (I),  120. 
where  bill  of  revivor  for,  allowed,  239, 
on  bill  of  discovery,  237. 
See  Impertinence. 
Scandal. 

COUNCIL,  see  Discovery. 

CONFIDENCE,  jfe  Plea  to  Discovery. 

COUNSEL,  as  to  signature  of,  see  Answer. 

Bill. 
•  Demurrer. 

Exceptions. 
Plea. 
bill  by,  to  recover  fee,  demurrer  to  allowed,  183. 
as  to  discovery  sought  from,  «ee  Plea  to  Discovert. 
as  to  costs  by,  see  Impertinence. 
Scandal. 


446  INDEX. 

COURTS  OF  COMMON  LAW, 

limited  character  of  jurisdiction,  3. 

of  equity  supply  defect  in  administration  of  justice  by  the  courts 

of  common  law,  4. 
of  inferior  jurisdiction,  175. 

CREDITORS, 

suit  by  or  on  behalf  of,  192,  193,  197. 
revivor  in  a  suit  on  behalf  of  creditors,  96. 
decree  in  such  suit,  193. 
cross-bill  by  creditor,  100. 

of  a  deceased  person,  have  no  privity  with  the  debtors   to  his 
estate,  185. 
See  Parties. 
Plea. 
CRIMINAL  PROSECUTIONS, 

not  relieved  against,  135. 
CROSS-BILL, 

where  necessary,  97,  100. 
frame  of,  99. 

of  discovery  against  a  lessor  of  tithes,  9S,  note. 
considered  as  a  defence,  admitting  jurisdiction,  99. 
where  now  dispensed  with,  although  formerly  necessary,  99,  n. 
in  chancery  to  original  bill  in  the  exchequer,  97,  note  (x). 
See  Bill. 

Creditors. 
Demurrer. 
Plea. 
CROWN, 

suits  on  behalf  of,  7,  22. 

where  the  attorney-general  to  be  made  a  defendant  on  behalf 

of,  32,  12.3,  199. 
remedy  on  behalf  of,  in  cases  of  nuisance  and  trespass,  169. 
(See  Suits.  * 

CUSTOM  OR  RIGHT, 

bill  to  establish,  169,  et  seq. 
See  Answer. 

D. 

DEATH, 

of  party,  where  abatement  caused  by,  69, et  seq. 


INDEX.  447 

DE  BENE  ESSE, 

bill  for  examination  of  witnesses,  62,  172,  173,  174. 
affidavit  in  support  of,  174. 
See  Demurrer. 
DEBTOR,  see  Creditor. 

Interpleader. 
Parties. 
DECREE, 

as  to  review,  reversal,  and  alteration  of,  101,  ct  seq. 
as  to  correction  of  formal  error  in,  109,  note  (r). 
obtained  by  fraud,  112,  113. 
bill  to  set  aside,  see  Bill. 

frame  of  bill  fur  that  pupose,  114. 
when  altered  on  rehearing,  and  when  on  bill  of  review,  278,281 . 
instance  in  which  extended  upon  original  bill,  117,  note, 
against  person  hiving   a  prior  estate  of  inheiitance  ;  as  to  its 

binding  those  in  remainder,  200,  201. 
bill  of  revivor  subsequently  to,  84. 

See  Assignee.  , 

Bill. 
Creditor. 
Demurrer. 
Infant. 
Plea. 

Statute  of  Limitatkjns. 
Supplement. 
DEEDS, 

rectified,  or  effect  of  controlled,  161. 
See  Cancellation. 
Delivery. 
Discovery. 
Execution. 
Plea. 
DEFECT  IN  SUIT, 

by  what  circumstances  occasioned,  68,  et  seq  ,  "^l,  note,'82. 
how  supplied,  73,  8J. 
DEFENCE  TO  A  BILL,  9,  10,  123. 

with  regard  to  the  jurisdiction  of  the  court  and  the  rights  and 
interests  of  the  parties,  12,  l.'l,  123. 
39 


448  INDEX. 

DEFENCE  TO  A  BILL— continued. 

on  what  it  may  be  founded  with  reference  to  the  bill,  14. 

form  of,  14,  15, 

may  be  different  to  different  parts  of  the  bill,  15,  128. 

none  required  to  a  bill  of  certiorari,  17. 
DEFENDANT, 

how  change  of  interest  in  relation  to,  affects  a  suit,  69,  et  seq. 

effect  of  his  death  or  bankruptcy,  69,  et  seq.  82,  83. 

peculiarity  in  prayer,  where  a  peer  or  peeress,  or  lord  of  par- 
liament, or  the  attorney-general,  is,  40. 

in  what  manner  a  commoner,  a  peer,  or  lord  of  parliament,  or 
a  corporation  aggregate,  to  answer,  10. 

how  and  to  what  extent  required  to  answer,  51,  54. 

See  Committees. 

Corporations. 

Idiots. 

Infants. 

Interrogatories. 

Jurisdiction. 

King. 

Lunatics. 

Married  Woman. 

Queen. 
DELIVERY, 

of  deeds  and  writings,  150. 

bill  seeking  such  relief  only  need  not  be  accompanied  by  affi- 
davit,   147. 
DEMURRER,  14,  123,  127. 

causes  and  purposes  of,  128. 

effect  of,  15,  128,  254,  255. 

is  upon  matter  apparent  on  bill,  128,  129. 

truth  of  matters  properly  charged  by  bill  admitted  thereby,  249, 

250. 
form  of,  248,  2'n. 

must  express  the  several  causes  of,  253. 
must  define  to  what  it  extends,  ib. 
in  relation  to  substance  or  frame  of  bill,  243. 
on  ground  of  defective  allegations  in  bill,  147,  189. 
must  be  signed  by  counsel,  246. 
where  put  in  without  oath,  246. 


INDEX.  449 

DEMURRER— cow^mwei. 

is  overruled  by  answer  or  by  plea,  24S,  249. 
course  of  practice  upon,  15,  2o4. 
what  is  decided  upon,  129,  130,  180. 

effect  off  "^'"^^"°'^'^,- 
(  overruling,  17. 

may  in  some  instances  be  allowed  in  part,  253. 

effect  of  allowing,  on  matter  of  form,  and  on   the   merits,  with 

regard  to  a  new  bill,  255. 
not  generallypermitted  after  demurrer  overruled,  253,  n.  (Z),  256. 
upon  overruling,  leave  in  some  instances  given  to   put    in  ano- 
ther less  extended,  2.33,  note  [1). 
ore  tentts,  256. 

division  of  the  subject  of  demurrers,  130. 
for  want  of  equity,  145,  189. 
to  the  jurisdiction,  132,  et  seq.,  145,  148,  261. 
on  ground  that  another  court  has  the  proper  jurisdiction,  14S, 

17o,  176,  et  seq. 
by  one  under  personal  disability,  as  an  infant,  a   married  wo. 

man,  an  idiot,  or  a  lunatic,  177. 
for  want  of  interest  or  title  in  plaintiff,  177 — 184. 
on  ground  that  plaintiff 's  title  is  in  litigation,  1S3. 
for  want  of  privity  between  plaintiff  and  defendant,  sec  Credi- 
tor, and  see  184 — 186. 
for  want  of  interest  in  the  defendant,  186. 
for  want  of  interest  in  the  case  of 
arbitrator,  187. 

assignee  without  title,  187.  189. 

bankrupt,  1S7,   188,  • 

heir  not  alluged  to  be  bound,  189, 
witness,  223, 
for  want  of  parties,  *ce  Parties,  2U7. 
for  multifariousness,  208 — 210. 

to  bill  for  part  of  a  matter  only  to  avoid  multiplicity  of  suits,  211. 
to  a  bill  of  interpleader,  166,  167. 

to  perpetuate  testimony,  172,  18'2. 
to  examine  witness  dchenc  esse,  J 73,  174. 
to  discovery,  causes  of,  219,  et  seq. 
for  want  of  jurisdiction,  220. 

.  -.  .     (  plaintiff,  220,  222. 

for  want  c.t  m'erest  in  <  '.   „     ,  ,„^   „   ., 

)  defendant,  220.  22S. 

forw^"  ybetweenplaintiffand defendant,  220,224 


450  INDEX. 

DE  MU  RR  E  R— continued. 
to  discovery 

for  want  of  materiality  in  the  discovery,  220,  226 — 229. 
on  ground  that  discovery  might  suhject  defendant  to  penal- 
ties, as  in   respect  of  usury,   maintenance,  champerty^ 

simony,  229 — 231. 
on  ground  that  it  might  subject  defendant  to  forfeiture  of 

interest,  as  upon  assignment  of  lease,  without  lease,  &c., 

229,  233. 
on  ground  that  it  might  subject  defendant  to  something  in 

nature  of  forfeiture,  as  in  regard  to  profession  of  popery  : 

exception  in  regard  to  acts  of  trading  by  one  declared 

bankrupt,  225. 
on  ground  that  it  might  subject  defendant  to  punishment, 

as  upon  a  criminal  prosecution,  229,  230. 
on  ground  that  it  might  subject  defendant  to  consequences 

of  a  supposed  crime,  as  in  respect  of  forged  deeds,  232. 
on  ground  that  it  might  subject  defendant  to  imputation  of 

moral  turpitude,  233. 
effect  of  waiver  by  plaintiff  of  penalty  or  forfeiture,  and  of 

agreement  to  make  discovery,  in  preventing  demurrer, 

231,233. 
on  ground  that  defendant  has  in  conscience  a  right  equal  to 

that  claimed  by  plaintiff,  as  in  case  of  a  purchaser  for  a 

valuable  consideration  without  notice,  or  jointress,  235. 
on  the  ground  that  the  discovery  relates  to  the  defendant's 

title,  220,  note, 
for  want  of  parties,  for  want  of  equity,  or  because  a  bill  is 
•  brought  for  discovery  of  part  of  a  mattei*,  will  nothold^ 

although  it  seems  a  demurrer  for  multifariousness  would 

lie,  237. 
to  bill  of  supplement,  239. 

on  gi'ound  that  the  bill  might  have  been  amended,  or  that 

the  new  matter  is  immaterial,  239,  245. 
to  bill  of  revivor,  233,  239,  336. 
to  bill  of  revivor  and  supplement,  243. 
to  cross-bill,  240. 

for  want  of  equity,  or  to  the  jurisdiction,  will  not  lie,  240. 
to  a  bill  of  review,  241,  242,  338. 

against  opening  the  enrolment   accompanying    plea     of 

decree,  241 . 
on  ground  of  lapse  of  time,  242. 


INDEX.  451 

DEMURRER— cow^mae^. 

to  a  bill  in  nature  of  bill  of  review,  242. 
to  a  supplemental  bill  in  nature  of  a  bill  of  review,  242. 
to  bill  to  carry  a  decree  into  execution,  243. 
to  amended  bill,  on  ground  that  the  new  matter  has  arisen  sub- 
sequently to  the  filing  of  the  original  bill,  245. 
to  relief,  where  it  extends  to  discovery,  214 — 218. 
to  discovery,  and  not  to  relief;  consequence  thereof,  219. 
to  relief,  giving  the  discovery,  219,  note  (/»). 
may  fail  as  to  relief,  yet  protect  from  the  discovery,  219. 
■    amendment  of,  SSri,  note  (a). 
See  Answer  . 
Bill.  / 

Counsel. 
Distinction. 
Plea. 
Time. 
DEVISEE,  see  Parties. 
DISCLAIMER,  15,  123,  127,  330,  357,  379. 
form  of,  380. 
eifect  of,  17,  380. 

no  replication  should  be  filed  to,  380. 
as  to  decree  upon,  380. 
where  inconsistent  with  answer,  381. 
necessity  of  being  accompanied  by  an  answer,  38i),  note. 
See  Answer. 
DISCOVERY,  R,  9,  13,  172. 
bill  for,  see  Bill. 

objects  of,  64,  65. 
form  of,  64 — 66. 

no  proceedings  upon,  after  a  sufficient  answer,  17. 
of  deeds  and  writings,  bill  for,  66. 

affidavit  in  support  of  unnecessary,  66,  146. 
right  to,  and  grounds  of,  9,  357,  358. 

when  and  when  not  enforced,  see  Demurrer,  and  219,  et  teq. 
of  matter  of  scandal  not  enforced,  359. 
in  aid  of  the  jurisdiction  of  this  and  other  courts,  219,  220. 

of  the  king  in  council,  264. 
of  defendant's  title,  not  enforced,  220,  224,  225,  226. 
whether  of  alienage  enforced,  233,  234,  334. 


i 


452  INDEX. 

DISCOVERY— continued. 

defence  in  respect  of,  although  not  of  relief,  128,  132. 

as  to  necessity  of  disclosing  that  an  agreement  or  a  trust  was  by 

parol,  with  reference  to  the  Statute  of  Frauds,  310,  311. 
as  to  necessity  of  disclosing  the  time  when  the  plaintiff's  right 
existed,  with  reference  to  the  Statute  of  Limitations,  312, 
et  seq. 
in  support  of  an  action  or  in  aid  of  the  defence  thereto,  226,  227. 
See  Answer. 
Bankrupt. 
Costs. 
Demurrer. 
Plea. 
Witness. 
DISMISSION, 

of  bill,  decree  or  order  of,  pleaded,  279. 
DISTINCTION, 

between  demurier  and  plea,  347. 

as  to  consequences,  between  an  original  bill,  in  the  nature  of  a 
bill  of  revivor,  and  an  original  bill  in  the  nature  of  a  supple- 
mental bill,  86,  87. 
DISTRESS, 

defeated  by  accident,  138. 
DOWER,  141,  143—145. 
DOWRESS, 

plaintiff,  favour  shown  to,  319,  note. 

E. 

ECCLESIASTICAL  COURT,  292,  note,  300. 

ELECTION, 

application  that  plaintiff  may  elect  to  proceed  either  at  law  or 

in  equity,  292. 
course  of  practice  upon  election  being  made,  ib. 

ENGLISH  BILL,  8. 
EQUITY, 

distinguished  from  positive  law,  3. 


INDEX.  453 

'ECiVlTY— continued. 

want  of,  see  Demurrer. 

See  Courts.  , 

Demurrer. 
Plea. 
Remedies. 
EXAMINATION  OF  WII  NESSES,  384. 

abroad,  bill  for,   172,  227,  notes. 
EJECTMENT, 

instances  of  relief  afforded  upon,  159,  167. 
EXCEPTIONS,* 

to  answer,  361,  376. 

form  and  practice  upon,  376,  377. 

accompanying  demurrer,  or  plea,  where,  they  constitute 
admission  of  validity  of  the  latter,  and  where  not,    378 
must  be  signed  by  counsel,  376. 
of  infant  or  attorney-general  not  allowed,  376. 
reference  of  to  a  master,  377. 
to  master's  report,  ib. 

upon  a  plea  referred,  356,  357. 
See  Master. 

EXCHEQUER  AND  EXCHEQUER  CHAMBER, 

Courts  of,  6,  notes. 
EXCOMMUNICATION,  *ee  Persons,  Plea. 
EXECUTION, 

of  another  deed  upon  discovery  of  contents  of  one   cancelled, 
bill  for,  147. 

affidavit  not  required  to  beannexed  thereto,  ib. 


FEME  COVERTE,  see  Married  Woman. 
Parties. 
Persons. 
FEOFFMENT, 

without  livery  of  seisin,  138. 
FINE,  see  Plea. 

effect  of  in  various  instances  of  legal    and   of  equitable  title 
293—295. 


454  INDEX. 

FOREIGN  COURT,  290,  note,  298. 
FORFEITURE,  see  Demurrer  to  Discovery. 
.    Discovery. 

Plea  to  Discovery. 
Waste. 
FORGERY,  see  Demurrer  to  Discovery. 
FRAUD,  see  Bill  to  impeach  Decree.     Decree,  149,  et  seq. 

negatived  by  averments  in  plea  and  answer,  see  Plea. 
FRAUDS,  Statute  of,  see  Statute. 

G. 

GUARDIAN,  ad  litem. 
for  an  infant,  124. 
for  an  idiot  or  lunatic,  124. 
for  a  person  imbecile  in  mind,  125. 

H. 

HEARING, 

relief  not  generally  given  at,  if  demurrer  would  have  held,  130. 
leave  given  at,  to  file 

a  cross-bill,  100,  395. 
a  bill  of  review,  395. 
a  bill  in  nature  of  bill  of  review,  395. 
a  bill  of  supplement,  389,  395, 
See  Amendment. 
Infant. 

Interrogatories. 
HEIR,  see  Answer. 

Demurrer. 

Parties. 

Plea. 

HUSBAND,  *6e  Parties. 


I. 


IDIOTS  AND  LUNATICS, 
suit  on  behalf  of,  7. 

by  whom  instituted,  31. 


INDEX.  455 

IDIOTS  AND  L\JN AT ICS—continued. 
defence  on  behalf  of,  to  suit,  124. 
See  Answer. 
Committees. 
Demurrer. 
Information. 
Persons. 
Plea. 

IMBECILITY,  see  Plaintiff. 

IMMATERIALITY,  *ee  Demurrer. 

IMPERTINENCE,  57,  note, 
in  bill,  57. 
in  answer,  372,  379. 
costs,  in  strictness  to  be  paid  by  the  counsel,  58,  379. 

INCUMBRANCER,  see  Answer. 

INFANT, 

suit  on  behalf  of,  26. 

by  whom  exhibited,  26. 
where  stayed,  29. 
defence  on  behalf  of,  to  a  suit,  124, 

his  consent  to  institution  of  suit  on  his  behalf  unnecessary,  31. 
indulgence  granted  tn, 

in  suits  on  behalf  of,  28,  43,  note  (i),  67,  note  (w). 
by  allowing  amendmrnt  at  hearing,  390. 
where  decree  improperly  affects,  114,  116,  note. 
See  Answer. 
Costs, 
Demurrer. 
Next  Friend. 
Persons. 
Plea. 
Suits. 

INFORMATION,  7,  22,  24,  119. 

on  behalf  of  idiots  and  lunatics,  31. 

charities,  121,  note, 
frame  of,  121. 
and  bill,  24,  120. 
frame  of,  121, 


456  INDEX. 

INHERITANCE. 

See  Decreb. 
Parties. 
INJUNCTION,  55,  157,  et  seq. 

see  the  various  subjects  in  this  index  upon  which  interposition 
by,  may  be  required. 
INSOLVENCY, 

See  Defendant. 
Plaintiff. 
Plea. 
INSTRUMENTS  lost,  see  Bonds,  and  146. 
destroyed  or  suppressed,  135. 
See  Cancellation. 
Deeds. 
Delivery. 
Execution. 
INTERPLEADER,  164. 
form  of  bill  of,  59,  166. 
bill  of,  by  agent,  166,  note  (r). 
by  debtor,  ib. 
by  tenant,  ib. 
as  to  affidavit  and  payment  of  money  into  court,  and  injunction 
in  case  of,  59,  60,  166,  167. 
See  Bill. 

Demurrer.  • 

Plea. 
INTEROGATORIES, 

object  of  particular  interrogatories,  51,  52. 

as  to  documents,  52,  note. 

orders  of  Aug.  1841,  as  to,  52,  note. 

in  bill  must,  in  order  that  answer  to  them  may  be  enforced,  be 

founded  on  particular  charges,  366,  note, 
for  examination  of  w^itnesses,  leave  given  at  hearing  to  file,  392, 

393. 
defendant  examined  upon,  after  his  plea  oveiTuled,  354. 


JEW,  see  Answbr. 


INDEX.  457 

JURISDICTION  OF  CHANCERY, 
ordinary  and  extraordinary,  1. 
general,  6,  8,  175. 

in  relation  to  particular  and  inferior  jurisdictions,  6,  9- 
general  objects  of,  4,  5,  132. 
where  to  be  exercised,  132. 

frame  of  prayer  of  bill  where  defendant  out  of,  43,  note  {(). 
when  court  will  proceed  in  the  absence  of  parties  whose  rights 
may  be  affected  by  the  suit,  34. 
See  Cnoss-BiLL. 
Demurrer. 
Judgments. 
^  Plea. 

JOINTURE, 

without  power  of  distress,  137. 

JOINTRESS, 

favor  shown  to,  324. 

See  Demurrer  to  Discovery. 
JUDGMENTS 

of  the  Common  Law  and  Ecclesiastical  Courts  enforced   in 
Equity,  148,  149. 
See  Plea. 

K. 

KING, 

suit  on  behalf  of,  7,  22. 
suit  may  not  be  instituted  against,  33,  123. 
where  to  be  applied  to  by  petition  of  right,  33,  123. 
See  Crown. 
Suits. 
KEEPER,  LORD,  7. 

L. 

LAW,  MUNICIPAL, 
objects  of,  2. 

LEGATEES, 

suit  by  or  on  behalf  of,  194,   197. 
decree  in,  194. 


458  INDEX. 

LEG  AT  EES^continued. 

of  deceased  person,  no  privity  with  debtor  to  his  estate,  185. 
See  Parties. 

LETTER,  MISSIVE,  40. 

LIMITATIONS,  *ee Statute. 

LITIGATION,  see  Repeated. 

LIS  PENDENS,  see  Plea. 

LORD  OF  PARLIAMENT,  see  Dependants. 

LUNATICS, 

by  whom  suit  instituted  on  behalf  of,  31. 
defence  on  behalf  of,  to  a  suit,  124. 
See  Ans  wer. 
Demurrer. 
Idiots. 
Persons. 
Plea. 

M. 

MAHOMETAN,  see  Answer. 
MAINTENANCE,  see  Demurrer  to  Discovery. 

MARRIAGE 

of  female  plaintiff  causes  abatement  of  suit,  69. 
brokage  securities  rescinded,  155. 

MARRIED  WOMAN, 

where  she  sues  jointly  with  her  husband,  29. 

separately  by  next  friend,  25,  30. 
her  consent  to  the  filing  of  a  bill  on  her  behalf,  separately  from 

her  husband,  necessary,  30. 
defence  by,  to  a  suit,  125,  126. 
where  she  must,  and  where  she  need  not,  obtain  an  order   to 

answer  separately,  125,  126. 
where  she  may  be  compelled  to  put  in  a  separate  defence,  126. 
See  Demurrer. 
Next  Friend. 
Plea. 


INDEX.  459 

MASTER, 

as  to  his  discretion  in  considering  exceptions  with  reference  to 
materiality  of  the  interrogatories,  377,  note. 
See  Exceptions. 
Plea. 
MATERIALITY,  see  Demurrer. 

Master. 
MISJOINDER 

of  an  annuitant  and  of  infants  by  such   annuitant  as  their  next 

friend,  27,  note, 
of  husband  and  wife,  30,  note. 

See  Note   on  Parties,  399 — 401. 
MISTAKE,  1.50,  151. 
MODUS,  see  Answer. 

MONEY,  payment  of  into  court,  see  Interpleadbr. 
MORAVIAN,  see  Answer. 
MORTGAGE,  153. 

MULTIFARIOUSNESS,  see  Combinatio!*. 

Demurrer. 

Demurrer-to  Discovbrt. 
MULTIPLICITY  OF  SUITS  prevented,  169.  211. 
See  Demurrer. 

N. 

NE  EXEAT  REGNO,  55,  56. 

NEXT  FRIEND 
of  infant,  26,   27. 

how  far  interested  in  event  of  suit,  28. 
of  married  woman,   30 
See  Costs. 
NEW  TRIAL, 

bill  for,  153. 
NON-CLAIM, 

See  Plea  of  Fine. 


460  INDEX. 

NOTICE,  320—324,  350,  354. 

See  Agent. 

Demurrer. 
Plea. 
NUISANCE,  168. 

O. 

OATH,  9.  10. 

OFFICES,  PUBLIC, 

securities  for  obtaining,  rescinded,  155. 

OPPRESSION,  154. 
ORDER  FOR  TIME, 

what  amounts  to  compliance  with,  246,  note  (o),  247. 
See  Time. 

OUTLAWRY, 

See  Persons. 
Plea. 

P. 

PAINS. 

See  Demurrer  to  Discovery. 
Plea  to  Discovery. 
PAPISTS,  234,  333. 

See  Demurrer. 
Persons. 
Plea. 
PARLIAMENT,  LORD  OF, 

See  Defendant. 
PARTIES, 

general  rule  as  to,  190. 
I.  Parties  as  arranged  under  the  following  General 
Titles  : — 

1.  O^VarUe^  generally,  186,  190,  197,    198,  200—202,  206- 
208,  393. 

2.  Of  Parties  out  of  the  Jurisdiction,  190,  191,  199,  399. 

3.  Oi  Misjoinder  of  Parties  as  Co-plaintifFs,  399. 


INDEX.  461 

PART  IE  ^—continued. 

4.  Of  Parties  to  Suits  of  a  Public  Nature,  402. 

5.  Of  Parties  to  Suits  for  an   Account,   and   to   Administration 
-     Suits,  192,  201,  203—206,  403. 

6.  Of  Parties  to  Suits  pertaining   to  the  relation   of  Assignor 

and  Assignee,  206,  407. 

7.  Of  Parties  to  Suits  affectin  g  Persons  having  a  Community 

of  Interest,  192,  194-197. 

8.  Of  Parties  to  Copyright  Suits,   418. 

9.  Of  Parties  to  Suits  pertaining  to  the  Relation  of  Debtor  and 
.      Creditor,  192,  197,  410,  418. 

10.  Of  Parties  to  Suits  in   respect  of  Actual   or   Constructive 

Fraud,  422. 

11.  Of  Parties  to  Suits  pertaining  to  the  relation    of  Husband 

and  Wife,  423. 

12.  Of  Parties  to  Suits  for  Legacies,  194,  412,  423. 

13.  Of  Parties  to  Suits  pertaining  to  the  Relation  of  il/or^^a^or 
•'    and  Mortgagee,  424. 

14.  Of  Parties  to  Partnership  Suits,  427. 

15.  Of  Parties  to  Suits  by  or  against    Tenants  in    Common   of 

Real  or  Personal  Estate,  428. 

16.  Of  Parties  to  Tithe  Suits,  429. 

17.  Of  Parties  to  Suits  pertaining  to  the  Relation   of  Trustee 

and  Cestui  que  Trust,  198,  199,  201,  202,  203,  430. 

18.  Of  Parties  to  Suits  between  Vendor  and  Purchaser,  434. 
II.  Parties  as  arranged  in  the  Alphabetical  Order  of 

THEIR  Specific  Designations  of 
administrator  (limited),  204,  205,  422. 
administrator  (general),  398,  404. 

ought  not  to  be  sole  plaintiff  to  a  bill  for  an  account,  406. 
See  Personal  Representative, 
annuitants,  403,  421,  423. 
appointees,  410. 
assignee  of  a  term,  407. 

of  a  legacy,  404. 

of  a  defendant  before  service  of  subpoena,  407. 

of  a  bankrupt,  402,  422. 

of  an    insolvent  debtor,  420,  424. 
assignor  of  a  bond,  206. 

of  a  judgment,  407. 

of  compensation  or  purchase-money,  407. 


462  INDEX. 

PARTIES — continued. 

assignor  of  deposits  on  shares,  417. 

attorney  or  solicitor  general,  32,  123,  196,  199,  402. 

attorney,  422. 

author,  418. 

bank,  ib. 

book-keeper,  186. 

cestuis  que  trust,  202,  203,  399,  4l«,  425,  426,  432,  433,  434. 

church  wardens,  399. 

committee  of  an  idiot  or  lunatic,  32. 

consignees,  401).      ' 

co-plaintiff  in  ejectment,  399. 

creditors,  192,  193,  197,  201,  410,  417,  418,  419,  425,  427. 

crews  of  oyster  boats,  439. 

debtors,  4!  9,  420. 

devisees,  407.  , 

distributees,  198,  403. 

executor  of  a  deceased  personal  representative,  400. 

who  has  not  proved,  404,  see  Personal  Representative, 
executory  devisee,  200,  393. 
foreign  government,  403. 
government  officer,  402. 
heir,  198,  199,  -203,  420,  421,  422,  425,  435. 
husband,  32,  423. 

person  assuming  the  character  of,  436. 
impropriator,  429. 

incumbrancer,  202,  4  35,  436,  see  Mortgagee, 
indorsees  of  a  bill  of  exchange,  421. 
inhabitants,  193,  410. 
landowner,  439. 
legal  owner,  206. 

legatee,  (residuary,)  398,  403,  412. 
legatees,  194,  201,  400,  403,  421,  428,  429. 
lessor,  402. 

members  of  a  club,  410. 
mortgagee,  400,  424,  425,  434,  435. 
mortgagor,  424. 
newspaper  proprietors^  411. 
next  of  kin,  196,  411. 
occupiers,  400. 
parishioners,  195,410. 


INDEX.  463 

F  ARTIES— continued. 

partners,  joinder  of  retired,  new  and  continuing,  400. 
partner,  404,  407,  421,  427. 
payee,  435. 

personal  representative,  204,  205,  399,  401,  404,  405,  406,  420, 
421,  422,  423,  425,  426,  427,  430,   431,  435,  aee  Executors, 
Administrators, 
pewholders,  411. 
purchasers,  406,  426,  434,  435. 
remainder- man,  200,  201,  398. 
reversioner,  200. 
secretary  at  war,  402. 
shareholders,  400,  408,  412—416,  417. 
sheriff,  39S. 
solicitor,  422. 
sureties,  421,  422. 
tenants  of  a  manor,  197. 
tenant  in  common,  428. 
tenant  for  life,  426,  432,  435. 
tenant  by  the  curtesy,  398. 
tenant,  202,  398,  436, 
termor,  407. 

trustees,  426,  428,  430,  431. 
vestry  clerk,  403. 
vicar,  401,  429. 
widow,  435. 
wife,  423. 

III.  Parties  having  no  Specific  Designations. 

person  interested  in  default  of  appointment,  398. 

person  not  a  party  to  an  action,  398,  401. 

person  having  no  right  to  relief,  401. 

party  to  a  bill  for  an  account,  406,  407. 

person  having  a  very  minute  interest  in  an  account,  406. 

person  who  has  possessed  part  of  another's  assets,  ih. 

persons  against  whom  there  is  a  joint  demand,  419. 

person  joining  in  a  receipt  for  price   of  property  improperly 

sold  by  a  trustee,  433. 
third  party  to  an  agreement,  436. 
claimants  under  a  will,  198,  403. 

40 


464  INDEX. 

PARTIES— continued. 

person  entitled  to  a  prior  estate  of  inheritance,  201. 
person  acquiring  a  new  interest,  201. 
persons  having  specific  charges,  203. 
person  entitled  to  an  escheat,  199. 
objection  for  want  of  parties  by  demurrer,  190 — 208. 

by  plea,  325—327. 
dispensed  with  by  waiving  a  claim,  207. 
demurrer  for  want  of  parties  avoided,  ib. 
such  a  demurrer  ought  to  show  who  are  proper  parties,  20S. 
doctrine  of  representation  409,  414. 
See  Amendment. 
Crown. 
Demurrer. 
Plea. 
PARTITION,  141—145. 
PARTNERSHIP, 

See  Answer. 
Plea. 
PATENT, 

as  to  restraining  infringement  of,   161,  170. 
there  must  be  a  separate  bill  against  each  invader,  210,   note. 
PEER  OR  PEERESS. 

See  Defendant. 
PENALTIES, 

See  Demurrer  to  Discovery. 
Plea  to  Discovery. 
Waste. 

PERPETUATION  OF  TESTIMONY, 
bill  for,  form  of,  62. 

must  be  accompanied  with  affidavit,  63,  174. 
See  Bill. 

Demurrer. 
Plea. 
PERSONS, 

incapable  of  exhibiting  a  bill  by  themselves  alone,  are  infants, 

married  women,  idiots  and  lunatics,  2~\ 
if  incapable  of  acting  for  themselves,   although   not  bearing 
either  of  these  characters,  by  whom  a  suit  may  be  instituted 
on  behalf  of,  32. 
by  whom  a  suit  against  such  persons  may  be  defended,  124,  125. 


INDEX.  465 

VERSO'NS— continued. 

outlawed,  excommunicated,  convicted  of  popish  recusancy,  nt- 
tainted,  and  aliens,  not  incapable  of  exhibitinqa  bill,  JG,  noit  s. 
PETITION, 

of  right  may  be  referred  to  the  chancellor,  33. 
in  a  summary  way  on  abuses  of  trusts  for  charitable  purposes, 
authorized  by  stat.  52  Geo.  III.  c.  101,  19,  1 M2,  note. 

relief  upon,   confined  to   cases   of  tbe   abuse   of  cle;u 
trusts,  20,  12-2,  note, 
in  relation  to  charities  by  the  59  Geo.  III.  c.  91,  122,  note. 
See  Rehearino. 

PLAINTIFF, 

how  a  change  of  interest  in  relation  to,  affects  a  suit,  <9,ciseq. 
suing  in  his  own  right,  eifjct  of  his  death,  b  mkruptcy,  iVc.  on 

the  suit,  G9,  et  seq.  79. 
suing  in  auter  droit,  cfffcl  of  his  death,  bankruptcy,  &(.••  on  the 

suit,  78,  8J. 
instance  of  imbecility  of  mind  in,  269,  note. 
Sec  Corporations. 

TulOTS. 

Infants. 

King, 

Lunatics. 

Married   Women. 

Queen. 

Partihs. 
PLEA,  15,  123,  127. 

when  the  proper  mode  of  defence,  2<j7. 

where  necessary  ratherthan  demurrer,5fe  Di3TiN:;TioN,and  258. 

bill  taken  to  be  true  so  far  as  not  contradicted  by,  352. 

nature  of,  253,  341. 

object  of,  258. 

effect  (if,  15. 

form  of,  342,  352. 

must  define  precisely  to  what  part  of  bill  it  extends,  3J"2,  352. 

must  contain  otdy  one  dcfjiice,  343. 

must  reduce  so  much  of  cause  as  it  covers  to  u  point,  ib. 

may  consist  of  variety  of  circumt-tanccs,  345, 

must  bring  t!ic  matter  wh'ch  it  covers  to  issue,  348. 


466  INDEX. 

P  LS  A — continued. 

as  to  this  mode  of  defence  in  case   of  setting  up  two  several 

bars  to  same  matter,  345. 
distinct  pleas  to  distinct  parts,  345,  note, 
multifarious  or  double,  312,  318,  note  {z),  343,  344,  345. 
leave  in  some  instances  given  to  plead  double,  344. 
instances  of  plea  not  being   a   complete   defence,   341,  note, 

347—350. 
may  be  good  in  part,  and  bad  in  part,  343. 
overrules  demurrer,  381. 
where  overruled  by  answer,  281,  note,  381. 
to  amended  bill  maj  be  disproved  by  answer  to   the   original 

bill,  351, 

after  demurrer  overruled,  255. 

where  to  be  signed  by  counsel,  352,  note. 

to  be  filed,  352. 

in  what  cases  to  be  put  in  upon  oath,  353. 

admitted  to  be  true  by  filing  replication,  ib. 

where  referred  at  once  to  a  master,  356. 

proceedings  on,  15,  341,  353. 

of  setting  down  to  be  argued,  353,  357. 

modes  of  disposing  of,  by  the  court,  353. 

„  (  of  allowing,  IG,  353. 

effect     <     ™  1°       ,« 

(  oi  overi'ulmg,  17. 

issue  may  be  taken   upon,   an   evidence  produced   upon  facts 

pleaded,  16,  354. 
consequence  of  defendant  succeeding  or  failing  in  the  proof  of 

facts  pleaded,  354. 

I  saving  benefit  of  to  the  hearing,  ib. 
\  ordering  to  stand  foj"  answer,  355,  356. 
with  liberty  to  except,  355. 
ordered  to  stand  for  answer  with  liberty  to  except;  qualified  so  as 

to  protect  defendant  from  part  of  discovery  sought,  355,  371, 

37:2. 
overruled  cannot  be  set  up  by  a  person  made  party  by  bill  of 

revivor,  336,  note, 
amendment  of,  327,  385,  note  {a). 
division  of  subject,  25*,  259. 
to  jurisdiction,  25*^,  259,  262,  et  seq. 
to  person,  2o8,  259,  265,  269,  275. 
in  bar,  258,  259,  261,  272,  275—277,  319,  325. 
requisite  allegations  in,  where  founded  on  jurisdiction   of  an 

inferior  court,  263. 


INDEX.  467 

FLEA — continued. 

to  information,  that  jurisdiction  in  visitor,  264. 
of  outlawry  of  pkinliff,  265,  356. 

rules  respecting,  265,  266. 
of  excommunication  of  plainiiff,  266.  356. 

rules  respecting,  266,  267. 
of  plaintiff  being  papist  recusant  convict,  267,  273. 

rules  respecting,  ib. 
of  attainder  and  conviction  of  plaintiff,  268,  273. 

rules  respecting,  26-*. 
of  alienage  of  plaintiff,  ih. 

rules  respecting,  ib. 
of  plaintiff  being  an  infant,  a  married  woman,  an   idiot  or  a 

lunatic,  269. 
negative,  in  denial  of  plaintiff's  title,  as  that  lie  is  not  heir  or 

administrator  as  alleged  by  him,  269,  270,  272,  273. 
of  title  in  the  defendant  without  traversing  tlie  plaintiff's  title, 

27,  n. 
of  plaintiff's  bankruptcy  or  insolvency,  273. 
of  want  of  privity  between  plainiiff  and  defendant,  275. 
that  defendant  is  not  the  person,  &c.   alleged,  ib. 
negative,  that  defendant  not  interested,  276. 
of  defendant's  bankruptcy,  330. 

that  defendant  not  liable  to  demands  of  plaintiff,  276. 
of  matters  recorded,   or  as  of  record,  278. 
of  decree,  278—287,  35(). 

when  it  may  be  in  bar  of  a  new  suit,  279,  et  seq. 
See  Dismission. 
of  another  suit  depending,  278,  2S7,  ct  seq. 
necessary  averments  in,  289. 

effect  of  plaintiffs  setting  same  down  to  be  argued,  ih. 
reference  to  a  master  upon,  288,  note,  269. 
not  put  in  upon  oath,  290. 
course  of  proceeding  u[)on,  288,  note,  290. 
may  be  good,  although  suits  not  between  same  parties,  290. 
may  not  be  good  where  plaintiff  sues  in  different  rights,  291. 
in  a  creditor's  suit,  ih. 

at  common  law,  or  in  ecclesiastical  court,   it   seems,  not 
good,  292. 
of  a  fine  and  non-claim,  29'<. 

where  the  title  is  legal,   and  where  equitable,   293 — 29.'>. 
necessary  averments  therein,  ih. 


468  INDEX. 

P  LEA — continued. 

to  a  bill  of  review,  296. 

of  a  recovery,  296. 

of  a  judgment,  296 — 300. 

upon  a  bill  in  respect  of  i  ights  determined  thereby,  297. 
upon  a  bill  to  set  it  aside,  298. 
of  will  and  probate,  300. 
of  matters  in  pais,  278,  301. 
of  a  stated  account,  301,  302,  306. 
form  of,  302,  303. 
.     of  an  award,  301,  303. 
of  a  release,  301,  304. 
form  of,  305,  306. 
of  a  legal  instrument  controlling  or  aifecting  the  rights  of  the 
parties,  301,  307,  et  seq. 
will,  307. 
conveyance,  ib. 
articles  of  partnership,  ib. 
an  agreement  to  I'efer  to  arbitration,  ib. 
of  a  statute,  creating  a  bar  to  the  plaintiff's  demand,  301,  308* 
et  seq. 

the  statute  of  frauds,  301,  308. 
form  of,  309,  et  seq. 
in  case  of  alleged  trust,  309. 
in  cases  of  agreements,  310. 
the  statute  of  limitations,  301,  312. 
form  of,  313,  et  seq. 
to  claim  of  debt,  313,  314. 

to  claim  of  money  received  to  plaintiff's  use,  314. 
to  claim  of  things  executory,  314,  315. 
to  claim  of  title,  315. 
to  a  bill  to  redeem  a  mortgage,  ib. 
to  a  bill  of  revivor,  316. 
of  plenarly,  ib. 

of  public,  or  general,  or  of  a  local  or  particular  statute,  318. 
of  purchase,  &c.  for  valuable  consideration  without  notice,  319, 
et  seq. 

proper  averments  in  such  a  plea,  .319,  et  seq.,  347,  348. 
to  a  bill  to  perpetuate  testimony,  324. 

for  discovery  of  deeds,  ib. 
for  want  of  parties,  325 — 327. 

particular  cases  in  which  this  plea  may  be  avoided,  326. 


INDEX.  469 

PLEA — continued. 

containing  negative  averments  supported  by  answer,  as  in  in- 
stance of  plea  containing  averments   ill  denial   of  equitable 
circumstances  charged  and  accompanied  by  answer  in  aup- 
port  thereof,  281,  et  seq.  303,  note,  322,  note,  340. 
effect  of  such  a  plea  so  framed  and  so  supported,  256. 
effect  of  a  plea 

of  judgment  so  framed  and  so  supported,  '-^^9. 
of  stated  account  so  framed  and  so  supported,  :-?02,  303. 
of  an  award  so  framed  and  sg  supported,  303. 
of  a  release  so  framed  and  so  supported,  3t)4. 
of  statute  of  frauds  so  framed  and  so  supported,  311,  :J12. 
of  statute  of  limitations  so  framed  and  so  supported,   314. 
to  discovery,  327,  et  seq. 

where  plaintiff  states  a  false  case,  329. 
where  plaintiff  not  interested,  ib. 
where  defendant  not  interested,  330. 
■where  discovery  sought  improper,  ih. 

that  it  might  subject  defendant  to  pains,  penalties  or  for- 
feitures, 331.  et  seq. 
effect  of  waiver,  ci34. 
that  it  would  betray  confidence  reposed  in  defendant,  as 

counsel,  attorney  or  arbitrator,  331,  335. 
that  defendant  a  purchaser  for   a  valuable   consideration 

without  notice,  ib. 
of  statute  of  limitations,  32S,  note, 
in  aid  of  a  plea  to  an  action  for  libel,  ib. 
of  the  discontinuance  of  an  action,  z'i. 
as  to  such  a  defence  to  the  relief  extending  to   the   discovery, 

313,314. 
to  a  bill  for  writ  of  certiorari,  336. 
to  a  bill  of  revivor,  236,  237. 
to  a  bill  of  supplement,  237. 
to  a  cross-bill,  338. 
to  a  bill  of  review,  ib, 

on  ground  of  matter  extrinsic  to  the    decree,  as   lapse  of 
time,  242. 
to  a  supplemental  bill  in  nature  of  a  bill  of  review,  340, 
to  a  bill  impeaching  a  decree,  281,  .340. 
to  a  bill  to  carry  a  decree  into  execution,  341. 
to  an  amended  bill,  that  the  new  matter  was  subsequent,  337' 


470  INDEX. 

PLEA — continued. 

See  Amendment. 
Answer. 
Averments. 
Demurrer. 
Distinction. 
Interrogatories. 
Time. 
PLEADING, 

former  practice  as  to  course  of,  19,  382. 
PLEADINGS, 

order  in  which  treated  of,  21. 
PLENARTY,  see  Plea. 
PRAYER, 

for  particular  and  for  general  relief,  39 — 43,  54. 
for  special  order  or  provisional  writ,  55,  56. 
See  Bill. 

Jurisdiction. 
PREROGATIVE,  see  Suit. 
PRESERVATION 

of  property  pendente  lite  by  this  court,  158. 
PRIVITY, 

See  Agent. 
Creditors. 
Demurrer. 
Legatees. 
Parties. 
Plea. 
PROBATE 

of  will  obtained  by  fraud,  300. 
of  will  in  a  foreign  court,  301. 
See  Plea. 
PUBLIC  POLICY,  155,  319,  et  seq. 
PURCHASER,  see  Demurrer. 
Parties. 
Plea. 

Q. 

QUAKER,  see  Answer. 


INDEX.  471 

QUEEN,  see  King. 

QUEEN  CONSORT,  24,  120,  123. 

a  bill  may  not  be  exhibited  against  her,  32. 

where  to  be  applied  to  by  petition,  33. 
QUIA  TIMET  BILL,  171, 

R. 
RECORD, 

where  right  appears  by,   not  necessary   to   establish  same   at 
law,  171. 
RECOVERY,  *ee Plea. 
REFERENCE  TO  MASTER,  see  Master. 

Plea. 
Suits. 
REGISTER  ACT  (Ship), 

observance  offormality  required  by,  neglected,  138. 
REHEARING, 

petition  of,  109,  111. 
See  Decree. 
REJOINDER,  384. 

special,  disused,  ib. 

leave  given  to  withdraw  and  to  rejoin  denovo,  394,  note  (m). 

subpoena  to  rejoin,  abolished,  384,  note. 

RELATOR. 

as  to  nomination  of,  and  as  to  liability  when  named,  23,  24,  31, 

180,  121. 
death  of,  how  suit  affected  by,  120. 
See  Costs. 

RELIEF,  8,  9,  13. 

defence  in  respect  of,  though  not  of  discovery,  12?,  132. 
where  legal  and  founded  upon  discovery  of  deeds    sought    by 
bill,  affidavit  to  be  annexed  thereto,  66,  146,  147. 
<Sec  Demurrer. 
Plea. 

RELEASE,  see  Plea. 

pleaded,  must  be  upon  good  consideration.  305. 
pleaded,  as  to  execution  of,  30G,  307. 


472  INDEX. 

REMAINDER, 

tenant  in  remainder  may   appeal  from  a  decree  against  one 
having  a  prior  estate  of  inheritance,  200. 
See  Decree. 
REMEDIES 

afforded  in  equity  with  reference  to  such  as  are  attainable  in 
courts  of  law,  134,  et  seq. 
REPEATED  LITIGATION 

restrained,  167. 
REPLICATION,  382. 

special,  now  almost  disused,  19,  383. 

liberty  given  to  withdraw,  and  to  amend  bill,  383,  note  (h),  394, 

note  (y). 
where  allowed  to  be  filed  nunc  pro  tunc,  384,  392,  393,  394. 
See  Disclaimer.  • 

Plea. 

REPRESENTATIVE,  PERSONAL,  see  Parties. 

Plea  Negative. 
REVIEW,  BILL  OF, 

under  what  circumstances  such  a  bill  can  and  cannot  be  sus- 
tained, 101—106. 
where  such  a  bill  may  and  may  not  be  filed  without  leave  of 

the  court,  102. 
where  such  leave  will  and  will  not  be  granted,  103. 
rules  in  relation  to,  as  to  proceedings  and  as  to  time,  105, 106. 
frame  of,  106. 

affidavit  necessary  upon  application  for  leave  to  file,  102. 
See  Bill. 
Decree. 
Plea. 

Supplemental  Bill. 
REVIEW,  BILL  IN  NATURE  OF  BILL  OF, 

where  the  proper  course  of  proceeding  is  by,  108 — 112. 
may  be  filed  without  leave  of  the  court,  1 12. 
frame  of,  ih. 
See  Bill. 
REVIVOR,  BILL  OF,  83,  84. 
parties  to,  92. 


INDEX.  478 

REVIVOR,  BILL  OF— continued. 
frame  and  contents  of,  91,  92,  93. 
course  of  proceeding  upon,  92,  93. 
practice  in  relation  to,  93. 
instances  in  which  not  necessary,  70,  et  seq. 
instances  in  which  court  has  acted  without,  94,  note  (w»). 
where  plaintiff  has  no  title  to  revive,  336.  i 

barred  by  statute  of  limitations,  337. 
See  Answer. 
Bill. 

Demurrer. 
Plea. 
REVIVOR  AND  3UPPLEMENT,  BILL  OF,  85,  97. 
REVIVOR  BILL  IN  NATURE  OF  BILL  OF. 

where  rhe  course  of  proceedit)g  ia  by,  S3,  note,  86,  117. 
frame  of,  117. 
See  Bill. 
Costs. 
Decree. 
RIGHT,  see  Custom. 


Record. 


S. 


SCANDAL,  58,  note. 

in  bill,  58. 

in  answer,  372. 

nothing  relevant  considered  as,  373. 

costs  in  strictness  to  be  paid  by  counsel,  58,  379. 
SCIRE  FACIAS, 

subpoena  in  nature  of,  84. 
SENTENCE, 

See  Judgment. 

SETOFF. 

frame  of  prayer  for  a  sot-off,  40. 
SETTLEMENTS,  323,  324. 

SIMONY, 

See  Demurrer  to  Discovery. 
SOLICITOR-GENERAL,  23,  120,  123. 

See  Parties. 


474  INDEX. 

SPECIFIC  PERFORMANCE, 

See  Agreement. 
STATING  PART, 

See  Bill. 
STATUTE, 

See  Plea. 
STATUTE  OF  FRAUDS, 

as  to  effect  of  insisting  on,  by  plea  or  by  answer,  312. 
See  Agreement. 

Discovery.  ' 

Trust. 
STATUTE  OF  LIMITATIONS, 

where  it  applies,  and  where  the  court  is  influenced  by  analogy 

to  it,  312,  316,  317,  318. 
as  to  its  application   to  a  suit  in  equity,  or  to  a  decree,  317. 
allegation   to  show  that  the  statute  of  limitations  had  not  run 

against  an  equity  of  redemption,  45,  note, 
may  be  the  ground  of  a  demurrer,  251,  note. 
See  Acknowledgment. 
Demurrer. 
Discovery. 
Plea. 
Revivor. 
SUBPOENA,  39. 
to  rejoin,  384. 
SUITS, 

instituted  on  behalf  of  the  Crown,  of  those  wiio  partake  of  its 
prerogative  and  of  those  whose  rights  are  under  its  particu- 
lar protection,  7. 

by  whom  severally  instituted,  22. 
one  on  behalf  of  infant  referred  to  a  master  to  ascertain  whe- 
ther for  infant's  benefit,  29. 
two  on   behalf  of  infant,   referred  to  inquire   which   most  for 

infant's  benefit,  ib. 
new,  how  they  become  necessary,  18. 
Sec  Statute  of  Limitations. 

SUPPLEMENT,  BILL  OF, 

cases  in  which  filed,  73 — 82,  100,  note,  199,  note. 


INDEX.  475 

SUPPLEMENT,  BILL  OF— continued. 
objects  of,  74,  et  seq.,  242,  note, 
parties  to,  9! . 

frame  and  contents  of,  90,  91. 
course  of  proceeding  upon,  90. 

instance  in  which  court  proceeded  without,  89,  note  (c). 
after  decree,  79. 
See  Bill. 
Plea. 
SUPPLEMENT,  BILL  IN  NATURE  OF  BILL  OF, 
where  course  of  proceeding  is  by,  118,  119. 
frame  and  contents  of,  ib. 
See  Bill. 

SUPPLEMENTAL  BILL,  IN  NATURE  OF  BILL  OF  RE- 
VIEW, 
where  course  of  proceeding  is  by,  lOS — 112. 
affidavit  necessary  upon  application  for  leave  to  file,  110. 
frame  of,  110—112. 
See  Bill. 

Demurrer. 
Plea. 
SURRENDER  of  copyhold  defective,  138. 


TENANT,  see  Copyhold. 

Interpleader. 
Parties. 
TENANT  IN  TAIL,  see  Decree. 
Parties. 
TERMS,  OUTSTANDING, 

bill  to  restrain  the  setting  up  of,   157. 
TESTIMONY,  sec  Bill. 

Perpetuation. 
TIME, 

lapse  of,  as  to  demurrer  founded  on,  see  Bill  op  Review,  2.51. 
to  plead,  answer  or  demur,  rules  in  relation  to,  246,  247. 
lapse  of,  to  answer,  after  plea  or  demurrer  overruled,  378. 
See  Discovery. 

Statute  ok  Limitations. 


476  INDEX. 

TITHES,  148. 

See  other  Titles. 
TITLE  OF  PLAINTIFF, 

instances  in  which  to  be  established  at  law  before  equity   will 

interfere,  G6. 
as  to  this  court's  consideration   of  the    legal   or  equitable,  235, 
236. 

See  Answer. 
Demurrer. 
Plea. 
Record. 
TRADINGr,  ACTS  OP,  see  DaMURRER  to  Djscovery. 
TRESPASS,  160. 

See  Crown. 
TRIAL,  see  Bill. 
New. 
TRUST, 

as  to  necessity  and  effect  of  confessing  in   an  answer  with  re- 
ference to  the  setting  up  of  the  statute  of  frauds.  310,  311. 
TRUST-FUND,  see  Parties. 
TRUSTEES,  see  Answer. 
Parties. 
TRUSTS,  1.56. 

U. 

USURY,  see  Demurrer  to  Discovery. 

V. 

VERDICT, 

where  bill  to  set  aside,  not  sustainable,  154,  note. 
See  Judgment. 


W. 


WAIVER, 

of  forfeiture,  334. 

of  penalty,  231. 
WASTE, 

legal,  136,  159—164. 


INDEX.  477 

WASTE — continued. 

equitable,  136,  note,  163,  194. 

pendente  lite,  158 — 161. 

penalty  and  forfeiture  in  case  of,  162. 

ought  to  be  waived  in  bill  seeking  to  restrain,  162. 
WILL, 

obtained  by  fraud,  300. 
See  Plea. 

WILLS, 

courts  of  equity  will  not  decide  upon  their  validity,   146,  note. 
WITNESS, 

made  defendant,  discovery  by,  not  compelled,  330. 
-See  Demurrer. 
Examination^ 
Plea. 

WRITINGS, 

See  Deeds. 
Delivery. 


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